Establishment Clause

1. Establishment Clause

2. Introduction “Congress shall make no law respecting an establishment of religion,” “or prohibiting the free exercise thereof;” • Interpretivist methodologies • Textualist • Originalist • Dynamic • External Both clauses seen as protecting religious freedom Con Law II

3. Textualist Interpretation • Structural tension between the 2 clauses • Complementary view • Establishment: anti-reward principle • Free Exercise: anti-penalty principle • Antagonistic view • Establishment: no religious benefits • Free Exercise: no religious burdens strict neutrality satisfies both neutrality may be insufficient Con Law II

4. Originalist Interpretation • Two essential liberties behind American revolution: political and religious • Established English Church dominated politics • Ecclesiastical courts often associated w/ arbitrary rule • States pre-1789 disestablished official churches • But, encouraged religion as essential to welfare • Virginia Precedent • Madison’s Memorial & Remonstrance (1785) • Against levy of religious tax • Jefferson’s Religious Freedom Act (1786) • Severed all links between church and state Con Law II

5. Originalist Interpretation • Little agreement among Framers • Evangelical view (Roger Williams) • Separation required to protect church from corruption • Secular view (Th. Jefferson) • Wall of separation protects secular interests • Mutuality view (James Madison) • Both religious and secular interests are promoted by diffusing/decentralizing power • Religion was 1 of many factions competing for power • Many framers were deists (cf. Unitarians) • Rejected Christian orthodoxy & divinity of Christ • Washington, Franklin, Adams, Jefferson Jefferson bible Con Law II

6. Originalist Interpretation • Original Constitution - Art. VI, cl. 3: “no religious test shall ever be required as a qualification to any office or public trust under the United States” • Pre-Civil War • Bible wars of 1844 • Protestants controlled “common schools” in NY, PA; • King James version was standard instructional text • Catholics demanded Douai version; state funding • Dozens killed in “Battle of Philadelphia;” elsewhere • Know Nothing Party enacted laws to guar-anty supremacy of Protestant values in schools & deny funding to Catholic schools (to make them financially unfeasible) Con Law II

7. Originalist Interpretation • Blaine Amendment (1874) • "No money raised by taxation in any State for the support of public schools, or derived from any public source, nor any public lands devoted thereto, shall ever be under the control of any religious sect, nor shall any money so raised or land so devoted be divided between religious sects or denominations." • Understood to ban aid to Catholic private schools, not to Protestant public schools • Failed in Congress • Succeeded in 34 states (incl. California) • Catholics lost; maintained private parochial schools • Some states required public school attendance • Held unconst’l in Pierce v. Society of Sisters (1925) Con Law II

8. Dynamic (NCBI) Interpretation • US is more religiously diverse than in 1789 • Founders were principally Protestant • Now, many more Christian sects; other monotheist (Judaism, Islam); Polytheist (Hinduism); Nontheist (Buddhism); Atheist • Principles of separation & neutrality • Guaranty individual right of conscience • Non-interference by gov’t in religious matters • Prevent trivialization & degradation of religion • Keep religion out of political arena Con Law II

9. Establishment Clause • Strict Separation • Jefferson / Madison • Madison’s Remonstrance • Everson v. Bd. of Ed (1947) • “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable.” • Views US as secular • Problem: strict separation may violate free exercise clause (hostility) this theory is reflected in the “entanglement” test Con Law II

10. Establishment Clause • Neutrality • Gov’t can’t favor 1 sect over another • “Sect preference” • Or religion over secularism • Gov’t must minimize any encouragement or discour-agement of belief/disbelief, observance/non-observ. • Non-adherents feel excluded from the political community • Views clauses as protecting religious freedom • Problem: strict neutrality may be insensitive to relig. theory reflected in the “endorsement” & “effects” tests (can’t be gov’t’s purpose to promote religion) (even unintended effect to advance religion is bad) Con Law II

11. Establishment Clause • Accomodation • Govt should recognize role of religion in society and accommodate its presence in gov’t • Prohibits only • Literal “establishment” of state religion, or • Coercion of religious participation • Narrow view (Scalia): only direct coercion (taxes, penalties) • Broad view (Kennedy): subtle coercion (school prayer) • Views US as pluralistic, not secular • Problem: permits gov’t to indirectly promote religion this theory is preferred by conservatives, since most allowing of religion in public life Con Law II

12. Establishment Cl. - Early Cases • Lemon v. Kurtzman (1971) • A law must have a valid secular purpose; • Primary effect of the law must be secular (i.e., neither to advance nor to inhibit religion); and • It must not foster excessive entanglement between the government and religion - factors: • character & purpose of benefited religious institution; • the nature of the aid; and • the resulting relationship between the government and religious authorities. 0. Laws discriminating among religious groups fail even before getting to Lemon Must survive all 3 parts Con Law II

13. Public Displays • Allegheny County v. ACLU (1989) • Nativity scene inside county courthouse and menorah + christmas tree outside • Separation (Stevens, Brennan, Marshall) • Presumption against relig displays, involvement • Accomm’n (Kennedy, Rehnquist. Scalia, White) • US pluralist tradition allows recognition of religion • Neutrality (Blackmun, O’Connor) • Outside display was const’l because neutral • Inside display was unconst’l because endorsed christianity Con Law II

14. Religion in School - Prayer • Engel v. Vitale(1962) • Non-denominational prayer endorsed religion and had subtle coercive effect • particular concerns that arise in the context of public elementary and secondary schools. • Wallace v. Jaffree (1985) • Moment of silence intended to reintroduce prayer in public schools - failed Lemmon 1 • Lee v. Weisman (1992) • Clergy-delivered prayers at graduation had same tendency to endorse as classroom prayer Con Law II

15. Religion in School - Curriculum • Epperson v. Arkansas (1968) • Ban on teaching evolution was motivated by a religious purpose • Edwards v. Aguillard (1987) • Teaching “creation science” intended to endorse religion • Pledge of Allegiance • Compulsary (Free Exercise & Speech problem) • WV v. Barnette (1953) • Voluntary (Establishment problem) • Elk Grove Unified Sch. Dist. v. Newdow (2004) Con Law II

16. Con Law II

17. Religion in School - Aid • Everson v. Bd. of Ed (1947) • Providing buses for parochial students ok • Other • Secular textbooks for parochial students ok • Salaries for parochial teachers not ok • Tax credit for private school tuition not ok (Sloan) • Tax credit for public/private school expenses ok • Widmar v. Vincent (1981) • University could not discriminate against relig. student groups in funding or access to facilities Aid must be to pupils not schools Religious free speech Con Law II

18. McCreary v. ACLU (2005) • 10 Commandments display in county courthouses (+ other religious texts) • District Court holds fails Lemon test • Lacked secular purpose, • Even in context of other texts, endorsed religion • SCt (Souter) affirms Lemon-purpose element • Purpose (objective) is familiar inquiry in con law • Distinguish from “motive” (subjective) • Needn’t be sole purpose, but principal purpose • Tainted purpose is hard to sanitize by latter action, if it results in the same gov’t conduct Con Law II

19. Van Orden v. Perry (2005) • 10 Commandments display on Capitol grounds (+ other historical texts) • Plurality (Rehnquist):Lemon test inapplicable • To passive (non-proselytizing) displays • Monument merely recognized our religious heritage • Also has non-religious (historical, law) connotation • Adopts accommodation test • Gov’t can recognize our religious heritage • Country founded by devout believers • American institutions presuppose a “Supreme Being” • Lack of accommodation might be “hostile” to religion Con Law II

20. Van Orden v. Perry (2005) • Originalist Interpretation (per Rehnquist) • Devout forefathers • Preferred & incorporated monotheism in new gov’t • Washington’s Thanksgiving Day proclamation • Results • Invocations, decalogues and homage are ok • Scalia: Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause. • Thomas: Establishment clause intended to protect state-established religions; should never have been incorporated Con Law II

21. Van Orden v. Perry (2005) • Originalist Interpretation (per Stevens/Souter) • Puritans & founders had separationist impulses • No religious views during convention or debates • Jefferson refused to issue Thanksgiving procla-mations; it would violate Establishment Clause • Madison: urged abstinence of Gov’tfrom religion • Some founders thought Christian sects prefered • Dynamic interpretation (per Stevens) • “derive from the Clause's text and history the broad principles that remain valid today” Con Law II

22. Van Orden v. Perry (2005) • Dynamic interpretivism (Stevens) • “we are not bound by the Framers' expectations -- we are bound by the legal principles they enshrined in our Constitution.” • Those principles lead to Neutrality requirement • “As religious pluralism has expanded, so has our acceptance of what constitutes valid belief systems. The evil of discriminating today against atheists, "polytheists, and believers in unconcerned deities," is in my view a direct descendent of the evil of discriminating among Christian sects.” Con Law II