Constitutional Law II

Establishment Clause

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Introduction“Congress shall make no law respecting an establishment of religion,”“or prohibiting the free exercise thereof;”Interpretivist methodologies Textualist Originalist Dynamic ExternalBoth clauses seen as protecting religious

freedom

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Textualist InterpretationStructural 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 bothneutrality may be insufficient

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Originalist InterpretationTwo 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 welfareVirginia Precedent Madison’s Memorial & Remonstrance (1785)

Against levy of religious tax Jefferson’s Religious Freedom Act (1786)

Severed all links between church and state

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Originalist InterpretationLittle 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

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Originalist InterpretationOriginal 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)

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Originalist InterpretationBlaine 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)

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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

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Establishment ClauseStrict 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 secularViews US as secular Problem: strict separation may violate free

exercise clause (hostility)

this theory is reflected in the “entanglement” test

Fall 2006 Con Law II 10

Establishment ClauseNeutrality 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 Views clauses as protecting religious freedomfreedom 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)

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Establishment ClauseAccomodation 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 secularViews US as pluralistic, not secular

Problem: permits gov’t to indirectly promote religionthis theory is preferred by

conservatives, since most allowing of religion in public life

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Establishment Cl. - Early Cases

Lemon v. Kurtzman (1971)1. A law must have a valid secular purposepurpose;2. Primary effecteffect of the law must be secular (i.e.,

neither to advance nor to inhibit religion); and3. It must not foster excessive entanglemententanglement

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

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Public DisplaysAllegheny 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

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Religion in School - PrayerEngel 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 1Lee v. Weisman (1992) Clergy-delivered prayers at graduation had

same tendency to endorse as classroom prayer

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Religion in School - Curriculum

Epperson v. Arkansas (1968) Ban on teaching evolution was motivated by a

religious purposeEdwards v. Aguillard (1987) Teaching “creation science”

intended to endorse religionPledge of Allegiance Compulsary (Free Exercise & Speech problem)

WV v. Barnette (1953) Voluntary (Establishment problem)

Elk Grove Unified Sch. Dist. v. Newdow (2004)

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Religion in School - AidEverson v. Bd. of Ed (1947) Providing buses for parochial students okOther 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 okWidmar v. Vincent (1981) University could not discriminate against relig.

student groups in funding or access to facilitiesReligious free speech

Aid must be to pupils not schools

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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 religionSCt (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

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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

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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

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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’t from religion Some founders thought Christian sects preferedDynamic interpretation (per Stevens) “derive from the Clause's text and history the

broad principles that remain valid today”

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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.”