Religious Liberty Outlines

Religious Liberty II – Establishment Clause Framework

I.     Overview of Religion Clauses

    A.     Modern Interpretational Dilemma
      1.     An “uneasy tension” and “potential conflict” between two religion clauses.

      2.     Different definition of “religion” for each clause?

      3.     Is there any reconciling principle?
    B.     Modern assumptions re: religious establishments
      1.     Government must be “neutral” towards religion.

      2.     “Wall of separation” between church and state.

      3.     The religious/secular dichotomy is real.

II.     The nature of religious establishments.

    A.     Disestablishment is a matter of jurisdiction, not neutrality.
      1.     The historical antecedents.
        a.     England – Church of England

        b.     Establishment Colonies – Virginia, South Carolina.

        c.     Non-establishment Colonies – Pennsylvania, Maryland.
      2.     When popular support for Anglicanism fell:
        a.     Anglicans: re-establish

        b.     Presbyterians: neutrality (no preference)
          1)     “Voucher” plan.

          2)     Jefferson’s Bill of Religious Liberty.

          3)     Madison’s Remonstrance against religious assessments (“vouchers”).
        c.     Baptists: no jurisdiction.
      3.     Madison’s Remonstrance.
        a.     Par. 1 – Religion is exempt from civil cognizance.

        b.     Par. 2 – Laws respecting religion are tyrannical.

        c.     Par. 6,7 – Established religion hurts the cause of Christianity.
    B.     Disestablishment is institutional, not ideological.
      1.     Jurisdictional framework
        a.     Separation of church and state institutions.

        b.     American legal context still based on law of nature’s God.

        c.     Myth of religious neutrality in the choice of civil legal context.
      2.     Jefferson’s position:
        a.     Religious establishment leads to false religion.

        b.     Religious assessments are contrary to liberty.

        c.     The Danbury Baptist (“wall of separation”) letter: a jurisdictional statement (man “has no natural right in opposition to his social duties”).
      3.     The church definition problem.
        a.     First amend. protects religion and religious liberty, not merely churches and church liberty.

        b.     The only reason for defining “church” is to give it different legal treatment than non-churches.

        c.     Legal discriminations between churches and other forms of religious association, or discriminations between religious groups and religious individuals, are all forms of religious establishment.
    C.     The historic understanding summarized.
      1.     Freedom of the mind is an inalienable right of every individual, account for which is owed solely to God, not to any man. Religion is an aspect of freedom of the mind. (Note: religion is a subset of intellectual freedom, not the whole.)
      2.     Thus, religion is wholly exempt from civil cognizance. Gov’t has no jurisdiction to aid, burden, or regulate religion.
      3.     No civil gov’t may establish any religion, that is, legally prescribe or regulate matters of religious faith or practice (the relationship between God and man).
      4.     Gov’t neutrality towards religion is not enough. Laws which favor, hinder, or regulate all religions equally violate the “no jurisdiction” mandate of lonang.
      5.     However, gov’t is not required to ignore the existence of God. Not all of God’s law relates to religious matters. Civil gov’t has a duty to seek and follow God’s law as to non-religious matters.

III.     Modern View of Establishment Clause.

    A.     Generally.
      1.     Sect Preference. A law which prefers one religious sect over another will be valid only if it is narrowly tailored to promote a compelling interest.
      2.     A law favoring or burdening a large segment of society that happens to include religious groups will be upheld (e.g., a Sunday closing law).
        a.     A state legislature can employ a chaplain to begin each legislative day with prayer. [Marsh v. Chambers, 463 U.S. 783 (1983).]
        b.     A gov’t maintained holiday display having religious symbols will be constitutional only if secular symbols are included. [County of Allegheny v. A.C.L.U., 109 S. Ct. 3086 (1989).]
        c.     Congress may allow religious groups to discriminate in employment on the basis of religion regarding their nonprofit activities. [Latter-Day Saints v. Amos, 483 U.S. 327 (1987).]
      3.     The Lemon Test. If a law has no sect preference, it will be valid if it: 1) Has a secular purpose; 2) Has a primary effect that neither advances nor inhibits religion; and 3) Does not produce excessive gov’t entanglement with religion.
    B.     Aid to colleges is valid as long as it must be, and is, used for nonreligious purposes.
      1.     Hunt v. McNair (1973). The Court held that financial aid to a religious college impermissibly advances religion only when “religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission” of the school. Here, the Court approved of aid to a Baptist college as not impermissibly advancing religion. What does that say about that college’s integration of biblical principles within its curriculum?
      2.     Roemer v. Bd. of Public Works (1976). The Court upheld annual state grants to private colleges (some of which were religious) for non-sectarian purposes.
        a.     Blackmun (plurality):
          1)     “Neutrality is what is required.” “Religious institutions need not be quarantined from public benefits that are neutrally available to all.”
          2)     State aid may not go to schools which are “pervasively sectarian,” but may go to schools where secular activities are separable from religious activities. [A capitulation to the secular/religious dichotomy.]
          3)     The entanglement of church and state is a matter of degree.
        b.     White (concurring): The activity funded here is a “separable secular function.”
        c.     Stewart (dissent): The aid should be held unconstitutional because the school’s theology courses were not “taught as an academic discipline.” [Presumably, a school can talk about theology as long as it doesn’t present it as truth.]
      3.     Bowen v. Kendrick (1988). S.Ct. upheld, against a facial attack, a federal grant program relating to teen sexuality and pregnancy which paid funds to both religious and non-religious organizations.
        a.     Rehnquist (majority): Following the logic of Hunt and Roemer, he finds the statute constitutional because: 1) it is neutral with respect to the secular or religious status of the grantee; and 2) the religiously affiliated grantees are capable of carrying out their statutory functions in a secular, rather than a sectarian, manner.
        b.     O’Connor (concurring): Using religious organizations to advance the secular goals of encouraging sexual restraint without permitting religious indoctrination is difficult, but achievable.
        c.     Kennedy (concurring): He doubts the usefulness of “pervasively sectarian” as a juridical category.
        d.     Blackmun (dissent): He wants to evaluate the constitutionality of aid purely as a matter of degree, by placing every school on a “continuum of sectarianism,” with parochial schools at one end and the colleges in Hunt and Roemer at the other end.

IV.     Biblical view of religion and public schools.

    A.     The historic view summarized.
      1.     Civil gov’t has no jurisdiction over the mind to compel, punish, or require exposure to, certain beliefs.
      2.     Thus, civil gov’t has no jurisdiction to teach or to educate. Education is solely within the jurisdiction of the family, the church, and voluntary associations.
      3.     Religious ideas and educational ideas equally partake of freedom of the mind. Hence, the law cannot distinguish between religious ideas and secular ideas. The religious/secular dichotomy – at least for educational purposes – is a myth.
      4.     All education is the communication of someone’s opinion.
        a.     Every assertion of fact or belief makes assumptions about what is true (or right) and what is false (or wrong).
        b.     No civil jurisdiction over truth. John 18:36, etc.
        c.     God is the source of all truth, not just “religious” truth. Col. 2:3.
        d.     When government provides “food for thought,” it acts to indoctrinate the mind. Witness: sex education & condoms; values clarification; meditation techniques, etc.
    B.     Historic tests of religious establishment. There are four historic tests of a religious establishment: 1) gov’t approved teachers; 2) gov’t approved curricula; 3) compulsory attendance; and 4) compulsory financial support.
      1.     Virginia Colony (same as English law).
        a.     Teachers. A person could not teach religion unless they were a member of the clergy of the state established religion (Anglican/Episcopalian).
        b.     Curricula. The order and form of worship were prescribed (Book of Common Prayer).
        c.     Attendance. Failure to attend the established church was a criminal offense.
        d.     Support. Clergy were paid by virtue of the “tithables” tax.
      2.     Modern public schools meet all these tests and constitute an impermissible state establishment of religion.
        a.     Teachers. A person cannot teach without a teaching certificate/ license, often even in a home schooling situation.
        b.     Curricula. Textbooks and teaching materials must be approved by the state, even in a home schooling situation.
        c.     Attendance. Truancy laws make schooling mandatory, not optional.
        d.     Support. Property taxes fund the salaries of public school teachers, even paid by people who have no children in the public schools.
      3.     If there is any doubt as to this conclusion – why else do most of the cases in any standard constitutional law casebook under the Establishment Clause relate to schools and to education?

V.     Modern view of religion in public schools.

    A.     Gov’t assistance to primary or secondary schools usually serves a “secular purpose.”
      1.     Everson v. Bd. of Ed. (1947). S.Ct upholds state funding of bus transportation made available to public and non-public school students alike.
        a.     Black (majority):
          1)     The provisions of the First Amendment had the same objective and were intended to provide the same protection against government intrusion on religious liberty as Jefferson’s Virginia statute.
          2)     The 14th Amendment makes the 1st Amend. applicable to the states [this was the first enunciation of this doctrine by the Court].
          3)     “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.'” [This was the first employment of this metaphor by the Court]. “That wall must be kept high and impregnable,” [presumably in an ideological fashion, that is, that religious ideas have no place in government.]
          4)     However, although the 1st Amend. requires states to be neutral in its relations with religion, “it does not require the state to be their adversary.”
        b.     Rutledge (dissent):
          1)     Church and state are “separate spheres” which must be kept inviolate. We must keep religious education out of the public schools.
          2)     Q: Is the prohibition against establishments of religion institutional or ideological? What is the difference?
      2.     However, if gov’t aid significantly improves the ability of students to go to religious schools, the aid is invalid.
    B.     Public schools may not allow any religious instruction during normal class hours. [McCollum v. Board of Education, 333 U.S. 203 (1948)]
      1.     Zorach v. Clauson (1952). Municipal program of “release time” where public school students can receive religious instruction off-premises during the school day was upheld by the Court. [Nonpublic building used for release time.]
        a.     Douglas (majority):
          1)     The 1st Amend. “does not say that in every and all respects there shall be a separation of Church and State.” “We are a religious people whose institutions presuppose a Supreme Being.”
          2)     The government must be neutral as between religious sects, but need not be hostile to religion, nor prefer those who believe in no religion over those who do believe.
          3)     Q: Does Douglass recognize any difference between “Church” and “religion”? What is the difference?
        b.     Black (dissent):
          1)     Constitutionality is not a matter of neutrality, but of jurisdiction. Consequntly, church-state separation is not a matter of degree, but an absolute barrier which “release time” impermissibly crosses.
      2.     Grand Rapids School Dist. v. Ball (1985). A state “shared time” program whereby public school teachers are used to hold classes for non-public school students on private school premises is held unconstitutional.
        a.     Brennan (majority):
          1)     Lemon Prong 2 – no advancement of religion.
          2)     The recipients of the shared time program aren’t really public school students, but private school students in disguise.
          3)     The danger is that “religious doctrine will become intertwined with secular instruction” by public school teachers, having an “indoctrinating effect.” [Apparently, religious teachers can’t help but let religion taint their instruction.]
          4)     The program conveys a message of government endorsement of religion, creating a “symbolic . . . union of church and state.” [Apparently, if things look bad, they must be bad.]
          5)     “The religious school has dual functions, providing its students with a secular education while it promotes a particular religious perspective.” [Assumes public schools and state universities advance no religious perspective.]
    C.     Detailed regulations designed to insure that gov’t aid does not advance religion may excessively entangle gov’t and religion.
      1.     Aguilar v. Felton (1985). Court invalidates municipal program which uses federal funds to pay the salaries of public employees who teach in parochial schools.
        a.     Brennan (majority):
          1)     Lemon Prong 3 – no excessive entanglement.
          2)     The supervisory system established by the city to prevent religious inculcation itself excessively entangles church and state.
        b.     Rehnquist (dissent):
          1)     “The Court takes advantage of a ‘Catch-22’ paradox of its own creation, . . . whereby aid must be supervised to ensure no entanglement but the supervision itself is held to cause an entanglement.”
        c.     O’Connor (dissent):
          1)     She expresses doubt about the usefulness of Lemon‘s entanglement test.
    D.     Prayer and bible reading in school are invalid as establishments of religion. [Engel v. Vitale, 370 U.S. 421 (1962); Abington School Dist. v. Schempp, 374 U.S. 203 (1963)]. It does not matter whether participation is voluntary or involuntary, and neither does it matter that the prayer period is designated as a period of silent prayer or meditation- [Wallace v Jaffree, 472 U.S. 38 (1985).]
      1.     Lee v. Weisman (1992). The Court held as unconstitutional the practice of having invocation and benediction prayers at public school commencement ceremony.
        a.     Kennedy (majority):
          1)     He declines the invitation to overturn Lemon, because “the government involvement with religion in this case is pervasive.”
          2)     Religion is “too precious” to be either prescribed or proscribed by the state. The fact that a school official asked a rabbi to pray at the commencement violates Prong 2 of the Lemon test.
          3)     To allow the commencement prayer would be “to deny our own tradition” of the last 200 years.
        b.     Souter (concurring): There is no such thing as a non-preferential state promotion of religion. Simply inquiring as to what beliefs are sectarian or ecumenical is to “engage in comparative theology.” The First Amendment does not “self-reveal” the concept of neutrality, but “our recent cases have invested it with specific content.”
        c.     Scalia (dissent):
          1)     “The history and tradition of our Nation are replete with public ceremonies featuring prayers.”
          2)     Nothing in the record suggests the rabbi “was a mouthpiece of the school officials.”
          3)     Interestingly, he identifies the four elements of an established church: 1) coerced orthodoxy; 2) coerced financial support; 3) required attendance; and 4) approved clergy (See Part III of his opinion).
      2.     Posting the Ten Commandments on the walls of public school classrooms plainly serves a religious purpose and is invalid despite the legislature’s statement that it was for a secular purpose. [Stone v. Graham, 449 U.S. 39 (1980)]
      3.     A state college may not deny use of classroom facilities (at times when classes are not in session) to a religious student group if the college allows other student groups to use classrooms. [Widmar v. Vincent, 454 U.S. 263 (1981)]
      4.     The Federal Equal Access Act prohibits public high schools that receive federal funds from discriminating against noncurriculum student groups (e.g., chess club as opposed to math club) on the basis of the religious or philosophical content of speech. [Bd. of Ed. v. Mergens, 110 S. Ct. 2356 (1990)]
    E.     A state can’t require creation science to be taught whenever evolutionary science is taught.
      1.     Edwards v. Aguillard (1987). Court strikes down state law requiring creation science to be taught whenever evolutionary science is taught.
        a.     Brennan (majority):
          1)     Lemon Prong 1 – secular purpose.
          2)     The act’s stated purpose is to protect academic freedom, but this is a sham. The act hampers teachers’ freedom by discrediting evolution at every turn. [Q: Doesn’t state control over curriculum generally have the same effect anyway?]
          3)     The real legislative purpose behind the act was religious, because the teaching of creation has been historically linked with certain religious denominations. “The statute was a product of the upsurge of ‘fundamentalist’ religious fervor.”
          4)     The term “creation science” itself embodies a religious belief. [Q: Is the theory of evolution any less religious or more scientific in character? Where is the scientific observation of evolution? Where are the repeatable experiments using the scientific method? Since no one witnessed the birth of life by evolution, don’t we just accept it on faith?]
        b.     Powell (concurring):
          1)     Material taught in public schools is not religious merely because it “happens to coincide or harmonize with the tenets of some or all religions.”
          2)     You can use “the Bible and other religious documents” in the classroom, so long as you don’t advance a particular religious belief [or teach that it is true].
          3)     Teaching creation science, apparently, advances a religious belief. [Q: But, will creation science, or intelligent design, put anyone in a right relationship with God? Will it save (redeem) anyone? Then what religion is it?]
        c.     Scalia (dissent):
          1)     A material fact issue exists as to what “creation science” is.
          2)     The court seems predisposed to believe that creation science necessarily “must be a manifestation of Christian fundamentalist repression.”
          3)     “In this case, however, . . . the Court’s position is the repressive one.”