Establishment of Religion & Introduction to Free Expression

1. Establishment of Religion & Introduction to Free Expression 4/09/09

2. Ten Commandments Cases Since 1980, the U.S. Supreme Court has decided several cases dealing with displays of the 10 Commandments on public property. • Stone v. Graham (1980) • McCeary County v. ACLU (2005) • VanOrden v. Perry (2005) • Pleasant City v. Summum (2009) Focus in these cases has been on the reasons for the display and • Religious motivation: to advance the values that are reflected in the 10 commandments. • Secular justification: to show historical basis for our laws. the context of their display • Location • Other displays in the area

3. Nature of the 10 CommandmentsSecular v. Religious • To what extent are the 10 Commandments a religious document? • To what extent are the 10 Commandments a secular document?

4. The Religious Nature of the 10 Commandments The 10 Commandments were clearly intended to be a religious document. They are found in the Old Testament of the Bible (the sacred text of Christians and Jews). The majority of the content is clearly religious in nature. Thou shall have no other gods before me Thou shalt not take the name of the Lord thy God in vain. Remember the Sabbath day, to keep it holy

5. The Religious Nature of the 10 Commandments The religious nature of the 10 Commandments is further shown by the fact that: 10 Commandments only appear in sacred texts of Christianity and Judaism. There are differences among Jews, Catholics, and various protestant denominations as to both the numbering and the wording of the commandments.

6. Religious Differences in the Ten Commandments FOR EXAMPLE: • Both the Protestant and Jewish versions of the 2nd commandment state: “Thou shalt not make to thee any graven images, or any likeness of any thing that is in heaven above, or that is in the earth beneath…Thou shalt not bow down thyself to them….” • But the official Roman Catholic version excludes this section and divides what is the 10 commandment in the other versions into the 9th and 10th in their version. • This deleted wording has frequently been used to condemn Catholic statutes of Jesus, the Virgin Mary and other saints.

7. Religious Differences in the Ten Commandments • The 6th commandment in the Protestant version and the 5th in the Catholic version state: “Thou shalt not kill” • The 6th commandment in the Jewish version reads: “Thou shalt not murder.”

8. Religious Favoritism: 10 Commandments Therefore the choice of which version to display can lead to conflict among religious groups and inevitably results in showing for one religious group over the others.

9. The Secular Arguments for Displaying the 10 Commandments Proponents of these displays typically argue there is a secular interest in showing how the U.S. legal system was based on the Ten Commandments. Problem with this argument is: only two of the Ten Commandments are reflected in our current laws, Thou shalt not kill Thou shalt not steal The real historical source of our basic legal principle is the common law system introduced by the Saxons in the middle of the 5th century—before Christianity was introduced into England in the 7th century.

10. Stone v. Graham (1980) FACTS: Posting copy of Ten Commandmentsin halls of school. HOLDING: It is a violation of establishment clause for public schools to post copies of the 10 commandments in school rooms and hallways. REASONING: • Context gave religious message • Distinguished March v. Chambers on the basis that school children were more impressionable than adult legislators.

11. McCeary & VanOrden Cases(2005) • McCeary County v. ACLU and VanOrden v. Perry both dealt with Ten Commandments displays on public property. • What were the most significant differences in terms of • Where they were displayed • How they got there • How long they had been there • When legal action had been started

12. McCeary County v. ACLU (2005) FACTS: Display was prepared especially for puplic display Displayed inside county courthouses Originally displayed alone, after controversy other forms of law added in response to local governmental resolutions that stressed indicated religious motivation Displays go back to 1999 and were immediately challenged.

13. Van Orden v. Perry (2005) FACTS: • stone tablets that had been prepared for use in making a famous movie • placed in park area around the state capitol building • along with 37 other monuments and historical markers. • Monument was given to the state • Displayed without challenge since 1961.

14. Votes of the Justices inMcCeary & Van Orden • Four Justices voted to allow both displays. • Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas • They argued that even though the displays did have some religious implications, they were justified by their historical significance. -------------------------------------------------------------- • Four Justices voted not to allow either display. • Souter, O’Connor, Stevens and Ginsburg • They argued both displays had religious purposes and sent messages of endorsement of religion.

15. Votes of the Justices inMcCeary & VanOrden • Key tie breaking vote came from Justice Breyer, who voted: • to allow the display on the Texas state capitol grounds but • not allow the displays in the Kentucky courthouses. • H e argued that the context of the Kentucky displays sent message of government endorsement of religion, while the context of the Texas display did not. • He emphasizes the context of other monuments around Texas display and the fact that it had been there for 40 years.

16. Test/Standards Applied • Four Justices [Rehnquist, Scalia, Kennedy, & Thomas] chose not to apply Lemon test in this type of “passive monument.” • Instead they apply a coercion test and find that there these displays do not coerce religious participation. ------------------------------------------------------------------------ • Four Justices [Souter, O’Connor, Stevens and Ginsburg] apply secular purpose test from Lemon and also reference endorsement test from Lynch v. Donnelly. • They emphasize principle that government must be neutral between religion and non-religion as well as between different religions. -------------------------------------------------------------------------- • Justice Breyer’s concurring opinion states: “no single mechanical formula ...can accurately draw the constitutional line in every case.” He focuses on nature of message being sent.

17. Pleasant City v. Summum (2009) FACTS: • As in Van Orden this case involved a Ten Commandments monument in a public park. • Whereas the plaintffs in Van Orden sought to have the monument removed, in this case, the plaintiffs sought to require the city to add another monument that contained the “Seven Aphorisms” of the Summum church. • Summum church combines general spiritualism with Gnostic Christianity • Whereas the Van Orden claim was based on the Establishment of Religion clause, the claim involved the freedom of speech clause.

18. Pleasant City v. Summum (2009) HOLDING: It is not a violation of the free speech clause of the 1st amendment (as applied to the states by the 14th amendment due process clause) for a governmental entity to place some privately donated monuments in public parks while rejecting others, even when the monuments represent competing religious viewpoints.

19. Pleasant City v. Summum (2009) REASONING: • Since monuments on public property are permanent fixtures and belong to the government, the majority justices distinguish this case from those we will read later in which private citizens seek to use public property for a temporary rally or demonstration. • Government officials have wide discretion in deciding what types, if any, permanent monuments they will accept. • Just as there is a limit as to how many books a public library can afford to buy or keep on its shelves, so too there is a limit as to how many monuments they can place in their parks. • Thus while citizens can invoke the establishment clause to challenge the addition of a religious monument, they cannot use it to require the government to have a religious monument.

20. Use of Public School Facilities by Religious Groups • These cases involve balancing the requirements of the free exercise of religion clause, the establishment of religion clause, and the equal protection clause. • Religious groups seek to use public facilities to exercise their freedom of religion. • Schools and other government agencies claim that it would violate establishment clause if they allow such use. • Courts have ruled that, as long as religious groups are given the same access as non-religious groups, there is no violation of the establishment clause.

21. Extra-Curricular Religious Activities Widmar v. Vincent (1981) Held that where state university made its facilities available to registered student organizations, it couldn't exclude student groups that wished to use them for religious purposes.

22. 1984 Equal Access Law • Provided that student religious groups should have the same rights as any other extra-curricular club to meet in public schools before and after normal instructional hours. • It also required that: • such meetings be student initiated and voluntary; and • meetings had to be lead by students--school personnel could be present only to observe, • non-students could not participate on a regular basis.

23. Religious Use of Public Facilities Other cases raising similar issues are: Lamb's Chapel v. Center Moriches Union Free School Dist. (1993) An evangelical church was denied opportunity to show films on family values in public school building. Rosenburger v. Rector, Univ. of Virginia (1995) University refused to pay printing costs for religious newspaper published by officially recognized student group. Good News Club v. Milford Central School Dist. (2001) Public school district refused to allow Good News Club to use school facilities in evening because their activities were religious in nature.

24. FREE EXPRESSION AND NATIONAL SECURITY

25. Absolutist v. Balancing Positions • Language of 1st amendment reads "Congress shall make no law abridging ..." • If interpreted literally, this is an absolute prohibition against any law that would abridge a first amendment right. • However, a majority of the justices have never interpreted it in this way. Rather they have always used some sort of a balancing test.

26. Alternative Balancing Tests • The major balancing tests that have been used by the Supreme Court are listed in Table 5-1 on p. 242. • As with equal protection tests it is very difficult to operationalize these tests, but one can at least place them on a continuum. • Bad tendency test is at one extreme • Clear and Present danger at the other

27. Role of the Court in Balancing • Judges sitting on the court determine which of several competing tests should be applied in a given situation. • Judges then have to apply the selected test to the facts of the specific case at hand.

28. Schenck v. United States (1919) FACTS: Federal prosecution under Espionage Act for distributing anti-draft literature during WWI.