RELIGION AND THE

AMERICAN

CONSTITUTIONAL

EXPERIMENT Chapter 10

Religion and Public Life

Sabbath Day Rules (1961)

In 1961 the Supreme Court heard four cases

in a row challenging traditional state rules

protecting the Christian Sabbath day.

McGowan v. Maryland (1961)

Braunfield v. Brown (1961)

Gallagher v. Crown Kosher Supermarket

(1961)

Two Guys from Harrison Allentown, Inc. v.

McGinley (1961)

Sabbath Day Rules (1961)

In all four cases, the Court found no violation of the First Amendment.

These Sabbath day cases were denounced as a travesty against religious liberty because the courts had failed to deal with the obvious reality that the Sunday laws were born of Christian inspiration.

Worse yet, the courts had failed to give the slightest accommodation to the freedom of conscience, exercise and equality claims of Jewish merchants.

Legislative Chaplains (1983)

Marsh v. Chambers (1983) upheld the

constitutionality of state legislative chaplains even

though a federal court of appeals had found this to

be a violation of all three prongs of the 1971

Lemon test.

The Supreme Court upheld the practice of

legislative chaplains by ignoring the Lemon test

and appealing instead to the “unique history” of

legislative chaplains in the United States.

Religious Symbols (1984-2010)

In Lynch v. Donnelly (1984) the Supreme

Court did use the Lemon test when the

constitutionality of a government display of a

manger scene in a private park was

questioned.

Again, no establishment of religion was found

since the scene had been used for forty years

as part of a large Christmas display.

Religious Symbols Supreme Court

Cases

Allegheny County v. ACLU (1989) – creche in PA

Capitol Square v. Pinette (1995) – free speech of the KKK in Ohio

McCreary County v. ACLU (2005)- displaying Ten Commandments on government property in Kentucky

Van Orden v. Perry (2005) – monument of the Decalogue in Texas

Pleasant Grove City v. Summum (2009) – Ten Commandments monument on government land in UT

Salazar v. Buono (2010) – seven-foot cross displayed in the Mojave National Preserve

Four Rules of Thumb

1. Older religious displays and practices fare

better than newer displays, particularly if they

have not faced previous constitutional

challenges.

2. How the symbol or practice is labeled can be

critical to a case.

3. Geographical location is important.

4. Whether the religious symbol or practice is

offset by secular symbols or practices.