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I. Religion in SchoolsA. Prayer/Bible in the Classroom1. Engel
v. Vitale, 1962, Black`a. Facts: NY school board composes prayer to
be said every morning in class: Almighty God, we acknowledge our
dependence upon Thee and we beg They Blessings upon us, our
parents, our teachers and our Country.b. Holding: Establishment
clause means at least that govt cannot compose official prayers as
part of a religious program carried on by governmenti. History
shows dangers of union of church and state book of common prayerii.
No compulsion needed to show establishment, just enactment of
lawiii. Madisonian arguments govt bad for religion and religion bad
for govt Also, take alarm at first experiment on our libertiesc.
Dissent, Stewart: No coercion, simply letting people say prayer.
Establishment means classical establishment. Govt prays all the
time! We are a religious people (Zorach).d. What differentiates
school officials and got chaplains?i. Parents vs. schoolsii.
Everyday indoctrination, impressionable kidse. Black leaves open
opportunities to historical anthems including composers expression
of faith. Is he drawing a line, defining prayer?2. Abington v.
Schempp, 1963, Clarka. Facts: State statutes requiring bible
reading every morning without comment. Students may be excused.
Student reading may choose version. Followed by recitation of the
Lords Prayer.b. Rule:i. 1) Purpose of the enactment must not be to
advance or inhibit religion; andii. 2) Primary effect must not be
to advance or inhibit religionc. Holding: The exercise has a
pervasively religious characteri. Even if purpose is not strictly
religious, method of accomplishing purpose is religiousii.
Religious character evidence in letting students choose versioniii.
Allowing for free exercise does not mean state can facilitate
religious exerciseiv. This decision does not impose a religion of
secularism because a religion of secularism is hostility toward
religion. Neutrality is being asked for.d. Brennan, concurrence:
Excusal does not resolve free exercise still public expression of
belief. Any version of Bible is sectarian.3. Wallace v. Jaffree,
1985, Stevensa. Facts: Enactment added words or voluntary prayer to
statute allowing silent meditation. Also added choice for teacher
to lead willing in composed prayer (obviously thrown out).b.
Holding: or voluntary prayer violates establishment clausei.
Abington test: No secular purpose identified that was not served by
meditation clauseii. Legislative history shows prayer in classroom
was intendediii. Endorsement test: adding prayer conveys a message
that the state approves of prayer in the classroom.c. OConnor,
concurrence: Meditation is not prayer (splitting hairs?). Adding
word prayer evinces religious purpose.d. Is neutrality anything but
religion?e. How one frames enactments matters in determining
purpose!4. Questions left open:a. What if religion is normal part
of conversation in that community?i. Religious privacyii. Rights of
parentsiii. School shouldnt be affirming/denying religionb. Teacher
free speech rights?c. Bible and Literature?d. Remember: Classroom
context is special. Extra-sensitive to indoctrination claims.e. Can
Students choose to read Bible aloud?f. Students free to pray in
school-yard?g. What about viewpoint bias in study of religion
classes?B. Creationism Controversy1. Epperson v. Arkansas, 1968a.
Facts: 1928, AK adopts anti-evolution statute. Product of
fundamentalist fervor. Makes it unlawful for teachers to teach
evolution. Only AK and MI still have monkey laws.b. Holding:
unconst. because it proscribes a set of knowledge solely because it
conflicts with a particular religious doctrinei. Government must be
neutralii. McCollum struck down release time statute using school
buildings for religious teachingiii. No justification other than
religious views of states citizens/representativesiv. The fact that
so few other states have such laws weighs against existence of
public policy concernc. Blacks concurrence: should only be struck
down for vagueness. No establishment. What about religious freedom
of those who do not see it as scientific but as anti-religious?
Teachers free speech. Parents rights to set curriculum.d. Is
neutrality a farce? Proponents of religion feel that anti-religion
can be suppressed. But, is this just science vs. one particular
view of science?2. Sex-ed hypo:a. people offended for religious
reasons and ban it?b. If state were silence on all things that
touch religion, little could be taught.3. Edwards v. Aguillard,
1987, Brennana. Facts: La. passes balanced treatment for
creation-science and evolution act - must teach facts for each side
equally or not teach it at all.b. Rule: Lemon test: Secular
purpose, neutral primary effect, no excessive entanglementc.
Holding: Primary purpose is to endorse a particular religious
doctrine.i. Elementary and secondary school students are very
impressionable stricter scrutiny of actii. No academic freedom
science education not helped by forcing teaching of creationism or
not teaching evolution. Sen. Keith said: my goal is that neither is
taught. How is that pro-education? Teachers already have
flexibility to teach what they want. Different def. of academic
freedom???iii. Fairness not furthered protects only creationists
from discriminationiv. We need not be blind to religious purpose of
legislature. Sen Keith made it clear evolution is against is
religious views.d. Powell, Concurrence: really hinges on purpose.
Here, purpose not secular. Creationism is a single sects
interpretation.e. Scalia, Dissent: No substantial legislative
history to judge purpose. Keiths remarks are not legislatures
feelings. Text said academic freedom why argue? Also, academic
freedom means for kids, not teachers. Construe to save, not
destroy. Protect creationists because they are the ones
persecuted.4. Freiler v. Tangipahoa, 5th Cir. 1999 - Anti-evolution
disclaimers struck down as having religious purpose5. Hypo: Texas
history curriculuma. Balance problem?b. Distinguished because not
religion v. science?6. Kitzmiller v. Dover School Dist., M.D. Penn.
2005a. Facts: Evolution disclaimer reference book Of pandas and
peopleb. ID is note science: supernatural causation. It is like
creation science irreducible complexity leads to God. No basis in
scientific communityc. Objective observers would know that ID
theory/gaps in evolution are of creationist, religious origins
(nativity display cases?)7. What is the alternative? Not teaching?
Private school, homeschool?C. Prayer at Graduation1. Arguments
distinguishing from classroom:a. Not everydayb. Not compulsory to
attendc. Solemn occasion2. Lee v. Weisman, 1992, Kennedya. Facts:
High School invites local clergy to pray at graduation. Very
generic prayer.b. Holding: prayer violates establishment clausei.
That government may accommodate under free exercise does not mean
it can sponsorii. Potential for divisiveness overt religious
exerciseiii. Principal gives guidebook like government composing
prayer!iv. Students forced to support being respectful.
Social/psychological coercion.c. Scalia, dissent: No history, we
are not qualified to do psychology. Standing or sitting as joining?
Not a real composition of prayer. What about pledge? High school
grads not impressionable children. No legal coercion.d. Subtly
retreats from school prayer cases requires coercion.e. Kennedy does
not use lemon test. What would outcome under Lemon be?i. Secular
purpose community unification? Other ways to achieve?ii. Primary
effect How does one find this? Framing issue?iii. Excessive
entanglement selection process? guidebook? f. Kennedy stresses
coercion... does it do anything? g. Under OConnor endorsement test
acknowledgement v. endorsementi. Endorsement sends message that
communicates some are insiders and others are outsidersii.
Acknowledgement recognizes religion without favoring or disfavoring
adherents of other religionsiii. Reasonable observers view as
either endorsement or acknowledgementiv. Atheists?3. Hypo: What if
student composes prayer during speech?a. Coercion same, but lemon
test is completely different no purpose or much entanglementb.
Restricting content? - Denying student chance to say something
religion-related seems like free exercise problem4. Tanford v.
Brand, 7th Cir. 2007a. Facts: Prayer at public university
graduationb. Holding: Does not violate 1st amend.i. Distinguished
from classroom: Mature audienceii. Coercion: Many students do not
attendiii. Lemon: Long-standing tradition, serves secular purpose
of solemnizing, de minimis advancement of religion or
entanglementiv. Endorsement: Primary effect does not endorse or
approve religion. Also, it is a simply acknowledgement of religion,
as tradition, as under Marsh (Chaplains const. because of unique
history of US).D. Student-lead prayer in school1. 5th cir. said
graduations ok non-sectarian, non-proselytizing but not football
solemnizing rationale2. Santa Fe School District v. Doe, 2000,
Stevensa. Facts: School board permitted graduating senior class by
secret ballot, to choose whether invocation shall be part of
graduation and football games. If so, class shall elect students to
deliver non-sectarian, non-proselytizing prayers.b. Holding: Prayer
at football games violates estab. cl.i. Not private speech in
public forum: not open to indiscriminate use, majoritarian process
guarantees only majoritys viewsii. Actual/perceived endorsement:
school has not distanced itself from views Elections only take
place because school lets them vote School requires not
proselytizing, nonsectarian prayer Religious message is obvious way
of solemnizing invocation is asking for divine assistance (cast
doubt on solemnizing rationale at all???) School-scheduled,
school-sponsored event objective observer would see it as school
condoning views of majorityiii. Lemon test, purpose prong:
invocation not necessary to solemnize; facts show that school
wanted to preserve tradition of prayer at football gamesiv.
Coercion: sure, all students not required, but some participants
extracurricular activities are required to be there; even if not
coerced to be there, those that do show up are coercedc. Rehnquist,
Dissent: Not enough facts, had the policy been put into practice,
students may have chosen according to wholly secular criteria like
speaking abilityd. Easy to see school origin of prayer in this
case, not student origin3. Hypo: License plates with religious
slogana. Note forced to have themb. State has approved plate
though, according to secular criteria, but still approvedc. What if
someone attributes message to state4. Hypo: Coach lets team captain
pray if he wantsa. Better, but consider history. If it is a way of
getting around coachs desire to pray, not good.b. Coach chooses
captain.c. What if captain elected?d. What if coach says captain
cannot pray?i. Secular purpose of preventing divisivenessii. But,
not being neutral?5. Main question: What structure of control makes
state responsible for content of the message?
II. Government-sponsored Religious Speech in Other ContextsA.
Legislative Prayer, Holidays, Religious Symbols, and the Pledge1.
What is the need for govt chaplains?a. Military reasons away from
home, special circumstances, need for counselingb. Legislative
reasons away from home, maybe special needs?c. Even if chaplains
exist, should they pray?2. Marsh v. Chambers, 1983, Burgera. Facts:
Neb. Legislature opens each day with prayer by chaplain paid by
stateb. Holding: In historical context, not violation of estab.
cl.i. Opening legislative sessions with prayer is deep traditionii.
First congress appointed paid chaplains three days after adopting
1st amend.iii. Chaplains long tenure was due to his performance,
not religioniv. No showing that prayer has been exploited to
proselytize, advance, disparage any faithc. Brennan, dissent:
Absent history, easily unconst. Prayer, unlike mottos and fixed
wordings, can become sectarian.3. Simpson v. Chesterfield, 4th Cir.
2004 Wiccan prayer denied because it was pre-Christian and
polytheist. Did not coincide with city goals of prayer. Court
upheld denial.a. But, Wynne, 4th Cir. 2004 cannot refer to Jesus or
other sectarian symbols4. Heinrichs v. Bosman, D. Ind. 2005a.
Citizens pray to open legislative session majoritarian (Santa Fe)
or diverse?b. Ecumenical prayer favoritism, divisiveness, composing
prayer?c. Enjoined Christian prayer, then case dismissed by 7th cir
on procedural grounds5. Residual religious culturea. Keep in mind
that plenty of things in culture have religious history but not
widespread religious meaning (San Francisco)b. To what extent can
government connect?c. Question rises only in 1980s: No one had a
problem before; But, the doctrines had only recently developed6.
Private/Public Forum distinction:a. Public land, private forum if:
selective and attributed to owner of forum.b. Public/private land,
public forum if: park open to public, unattended display, equal
access7. Lynch v. Donnelly, 1984, Burgera. Facts: Nativity scene
owned by city placed in private park next to Santa Clause and other
Christmas figuresb. Holding: In context, celebration of holiday not
violation of estab. cl. under Lemon testi. Secular purpose can
exist even if religious symbolism is means of achieving itii. Does
not advance religion any more than other laws (Sunday closing,
grants to church schools, church tax relief)iii. No excessive
entanglement less day-to-day interaction than religious paintings
in public museumc. OConnor, concurrence - Endorsement test 2 prong
distillation of lemon test for religious display casesi. Whether
government intends to convey message of endorsement or
disapprovalii. Whether government practice has the effect of
communicating a message of government endorsement or disapprovald.
Context important in all opinions, but how is context framed?8.
Allegheny Co. v. ACLU, 1989, Blackmuna. Creche inside, on grand
staircase. Menorah outside by Christmas tree. Disclaimer by
Menorahb. Holding: Creche impermissibly endorses Christianity under
Lynch. Menorah ok.i. Creche is alone in cherished spot of
buildingii. Menorah not super-religious, also not standing alonec.
Reasonable observer is not exactly like reasonable person. It is an
omniscient observer who must reasonably perceive endorsement or
not.d. Hypo Nativity scene and Menorah9. McCreary Co. v. ACLU,
2005, Soutera. Facts: 10 Commandments placed in courthouse.
Challenged just as it is being put up there. Surrounded with
documents all documents acknowledge religion in role of formation
of nationb. Holding: Violates purpose prong of lemoni. Context -
Religious cultural movement trying to promote revisionist
historyii. All thats needed is plausible religious purpose (contra
Lynch?)10. Van Orden v. Perry, 2005a. Group Donates 10 commandments
structure to Texas. Placed outside with lots of other monuments.
Sat there for 40 years with no protestb. Plurality upholds Thomas,
Rehnquist, Scalia, Kennedyi. Dispenses with Lemon testii. Nature of
Monument: Historical meaning, simply having religious content does
not make monument unconst.iii. Nations History (Lynch standard): 10
commandments in S. Ct.; they represent lawc. Breyer Concurrence
(controlling)i. Pragmatism - establishment clause is there to
prevent divisivenessii. Physical setting does not suggest the
sacred area with other monuments 40 years with no challenge -
evidently no divisiveness There will be protests over removal of
Christian symbols What is the real harm of 10 commandments?iii. Not
like Stone not in school to inculcateiv. Not like Allegheny not in
prominent place with legislative history suggesting religionv. Not
like McCreary no religious objectives of stated. Stevens, Dissent:
Decalogue inherently religious e. Is the real holding: No new
monuments but old ones with appropriate history can stay?11. Newdow
v. US Congress, 9th Cir. 2002a. Pledge of Allegiance challengedb.
Applies all 3 tests (Lemon, Endorsement, Coercion), strikes down
Pledgec. Fernandez dissent - Not establishing religion12. Elk Grove
v. Newdow, 2004a. Dismisses 9th cir. case for lack of standingb.
Rehnquist, concurrence: Prudential standing rule improperly
applied; under God not a religious exercisec. OConnor, concurrence:
Under Endorsement and Coercion tests not an establishment. simply
ceremonial deismHistory and ubiquityi. Absence of worship or
prayerii. Absence of reference to specific religioniii. Minimal
religious contextd. Thomas Federalism interpretation of
establishment clausee. Is OConnors observer a student or a
parent?13. Outline: Merits of a case challenging laws/displays
based on religious connectiona. Lemon - Secular & religious
purpose (useful for endorsement test) - dual purposes? 3 views:i.
RP is fatal no (criminal/family laws would be repealed)ii. RP
taints law Strict Scrutiny, similar to race discrimination law,
shifts burden of proof. No one takes this view either religious
purposes not inherently bad like racism No balancing in estab. cl.
Casesiii. Lynch - SP saves it, as long as there is a SP, RP doesnt
matteriv. McCreary co. if RP predominate, unconst.b. Endorsement
test: purpose to endorse, effect of endorsingi. Through eyes of
reasonable, objective, omniscient, observerii. Remember, observer
aware of historical contextc. In lower courts both lemon and
endorsement still good law (by a thread), must incorporate them
both lemon as glossed through endorsement is basic lawd. BUT
Kennedy Coercion test in Allegheny/Lee v. Weismani. Religious
display ok if: Non coercive Is only flexible accommodation/passive
acknowledgement Only for existing symbols Must not benefit religion
in a direct way more substantially than in national heritageii.
Real question over coercion Kennedy v Scalia in Lee v. Weismaniii.
Flexible accommodation not really present in display case, but
mentioned Salazariv. Passive acknowledgement: Historical (Marsh):
accurate? Or simply a pretext? Cultural (Lynch): ok, if secular
majoritarian? Reverential: Scalia, Thomas, Rehnquist our tradition
to show reverence to God of Abraham. Tied to cultural? - Brennan
struggles with this line.v. Must not benefit existing symbols in
novel way what about new religions?B. Private Religious Speech in
the Public Forum1. Intersection of Free Speech and Freedom of
Religiona. Meaning of religious freedom at foundingi. Liturgical
freedom/freedom of worshipii. Free assemblyiii. Free to prepare and
disseminate ones own religious writingsiv. Freedom to proselytizev.
Freedom from compulsionvi. Parental freedom to direct religious
inculcationvii. Equality of sectsb. Many of these protected by
multiple clauses in first amendmentc. Free exercise rights and free
speech rights often (mostly? always?) coterminousd. Religious
character does not matter with regard to time/place/manner
restrictions or restrictions on unprotected speeche. Public
forumsi. Traditional Streets, sidewalks, parks, other places where
people have been traditionally free Cannot regulate speech except
for reasonable, viewpoint-neutral TPM, unprotected No
subject-matter regulationsii. Designated TPM, no viewpoint
discrimination Reasonable content restrictions allowed (___-related
only)iii. Nonpublic fora - once it is not a public forum,
government takes responsibility for its speech2. Widmar v. Vincent,
1981, Powella. Facts: University told Christian group it could not
meet in school buildings. Designated forum. University denied group
because of religious worship subject-matter restriction. Their
reasonable restriction was justified using establishment clause.b.
Rule: Lemon Testc. Holding: An equal access policy does not violate
establishment clause because the primary effect is not advancing
religion. Caveat: in absence of empirical evidence that religious
groups will dominatei. Open-forum policy clearly has secular
purpose and avoids entanglementii. Incidental benefits to religious
organization do not violate prohibition on advancement of religion.
Factors regarding whether is incidental include 1) no imprimatur of
state approval and 2) Forum is available to broad class of
religious or nonreligious speakers benefits broad spectrumd.
Possibility that commitment of resources would pose problem;
however, only building being given. Building cant be diverted to
direct religious servicee. No attribution (like endorsement) nobody
attributes political groups ideas to school3. Lambs Chapel v.
Center Moriches Free School Dist., 1993, Whitea. Facts: NY Law lets
people use school property for 10 specified purposes when not using
as school. The list does not include religious purposes and NY ct.
held that religious groups could not meet. Group wished to show a
film, permission denied because film was church-related.b. Holding:
Establishment clause not a defense for denying access. No perceived
endorsement, see incidental factors in Widmari. 1) No school
sponsorshipii. 2) An open policy would benefit a wide variety of
organizationsiii. New factor: Event would be open to public, not
just church members - Perhaps justifies using public land?c. In
order to avoid viewpoint discrimination allows same topics to be
addressed by secular orgs/speakers?4. Bd. of Educ. v. Mergens, 1990
- Upheld law mandating equal access to public forums by any school
receiving federal funds. Establishment clause challenge rejected.a.
Meetings not held during instructional timeb. Did not interfere w/
educational mission of schoolc. Not endorsed by schoold. Involved
no participation by school officialse. Held in atmosphere where
religious club was one of manyf. No one coerced to attend5.
Rosenberger v. UVA, 1995 - Religious journal journal/speech still
forum allocation of money. Problem of resources committed to
proselytizing. Court rules journal must be funded.6. Good News Club
- After-school program for elementary school children.
Misattribution kids may think school is sponsoring? Ct. allows Good
News Club7. Bronx Household of Faith, 2d. Cir. 2003 - Good News
Club does not mean religious activity cannot be treated as a
distinct type of activity. Though line between worship and speech
is blurred.8. Capital Square Bd. v. Pinette, 1995a. Facts:
Government does not allow KKK to put up cross in capital square
along with other monuments. The state argues it would be an
establishment.b. Plurality, Scalia: Yes, religious expression does
not violate establishment clause if: (1) it is purely private; and
(2) it occurs in a traditional or designated public forum, publicly
announced and open to all. Here, we only have incidental benefits,
if any.i. Does not apply endorsement test because there is no
government speechii. Endorsment really means favoritism anyway:
Allegheny grand staircase not open to all; Lynch crche did not
violate because of contextiii. No perceived endorsement erroneous
conclusion by reasonable observer do not count. People familiar
with square know it is an open forum used for private speech.
Conflicting opinions are showcasediv. If it is protected, the fact
that it is religious does not matter it is protected speech only
obscenity can be regulatedc. Concurrence, OConnor no need to throw
out endorsement testd. Concurrence, Souter (Narrowest, controlling)
endorsement test with disclaimere. Even though Souters is probably
narrowest, lower courts more often cite the plurality they like the
bright-line rulef. Scalia argues, convincingly, that not having a
bright-line rule will put governments into a catch-22 free exercise
cl. in tension with estab. clg. Display is temporary9. Argument
strategies - Competing Claims?a. If P claims access of speech, Govt
will say it is nonpublic - Not establishmentb. If P wants removal,
Govt will say it is public - Private speech10. Pleasant Grove v.
Summum, 2009, Alitoa. Facts: Public park contains 15 displays, 11
of which donated by private individuals, including 10 commandments
like those in Van Orden. City rejected Summums application to erect
its own religious monument because it did not directly relate to
the history of the city and Summum did not have longstanding ties
to the city.b. Holding: Not a violation of estab. cl. government
cannot be forced to speaki. Monuments are government speechii. Such
monuments can be controlled limited space in parkc. Concurrence,
Scalia City should not be afraid that monuments violate estab.
cl.d. Concurrence, Souter if estab. cl. becomes an issue, ct should
use endorsemente. The court applied the forum doctrine where the
govt property was capable of accommodating a large number of public
speakers. Parks can only contain a limited number of monuments and
still be used for recreation.f. The display is PERMANENT they will
be there (in the way) forever!g. ACLJ brief like a library! Ct.
doesnt buy it. Context of few monuments on public land different
than art collections?11. Salazar v. Buono, 2010a. Remember Summum
things on government land is government speech if not a public
forumb. Exchange between lawyer and Scalia (Jewish cemetery)
reasonable observer? Lupu not fan of endorsement; neither is
Alito.c. Options for avoiding conflict: secularize memorial. No
real way to avoid insiders/outsiders when using religious
symbolism.d. From here: on remand, transfer of land: what to do?
Lupu: sign on land! Disclaimers are interesting way to solve
display problems, more info is a good thing.12. License plates
Hypo:a. Vanity plates: Must allow competing viewpoints. EC
attribution no. Like Pinetteb. Specialty Plates: Some groups are in
and others are not based upon certain criteria groups that
discriminate in certain ways are not allowed viewpoint issues.
Similar content restrictions as well. States message like Summum?
Or, designated public forum?13. Acknowledgement and Accomodation
arguments: Justices against endorsement test usually ok with
acknowledgement. Is it accommodation to allow a historical monument
with religious undertones to stand? Acknowledgement is stronger
argument than accommodation in display cases, but limits of
acknowledgement has never been defined by the court.
III. Financial Support of Religious EntitiesA. Everson v. Bd. of
Educ. of Ewing, 1947, Black1. Facts: Busing program applied to all
students, even those going to parochial schools.2. Infamous Estab.
cl. means at least this...3. Holding: Program paying for fares of
both public and parochial schools is const.a. Parents rights to
choose schoolb. Law neutrally appliesc. State-paid policemen
protect all property, even religion onesd. No money contributed
directly to schools (implies that would be unconst.)4. Jackson is
wrong, facts do not suggest religious discrimination. Thats a
really different case!5. States cannot ban religious education, but
not required to subsidize (CLS v. Martinez)6. Direct/Indirect
distinction common reading of Eversona. Direct advancing
educational mission means advancing religious mission.b. Indirect
protecting public health and safety.B. Allen Local bd approves
books, buy them. Secular books. Loaned them to students. Loaned to
parents, not schools, even though schools would hold on to them
over summers. Attempt to make aid appear indirect. Upheld as
indirect aid to the secular educational mission. Approval process
could be gamed excessive entanglement?C. Lemon v. Kurtzman, 19711.
Facts: pays teachers/schools for secular education2. Formation of
Lemon test Secular purpose (Abington, Primary effect not to inhibit
or advance religion (Abington), No excessive entanglement of
religion (Walz)3. Holding: unconst. because of excessive
entanglementa. Getting kids to school is valid secular purposeb.
Primary effect prong not addressedc. Effective enforcement would
require monitoring to make sure money and teachers used only for
secular educationd. Without monitoring, primary effect would/could
be to promote religione. Political divisiveness? (not mentioned
much in later cases)D. Lupu Lemon Test:1. In financial aid cases,
primary effect and excessive entanglement are really the
contentious issues. Secular purpose often stipulated.2. Not clear
whether secular purpose must outweigh religious or whether
existence of a secular purpose makes statute per se valid. Cant be
a pretext McCreary3. Primary effect cannot be to advance or inhibit
religion. Inhibit free exercise problem? Probably not useful to get
around Smith thus, doesnt do any workE. Tilton and Richardson -
colleges can receive money a long as theyre not pervasively
sectarian. no reverter clauses (secular use for 20 years, then
whatever)F. Direct/Indirect financing (Everson)1. Direct - Aguilar,
1985 overturned by Agostini, 1997, Public employees providing on
site teaching2. Indirecta. Nyquist, 1973 tax credits for school
tuition struck downb. Mueller (tax deduction for private school
tuition), Witters (scholarship for religious training), Zobrest
(state sign language interpreter used in religious school) all
upheldG. Mitchell v. Helms, 20001. Facts: Federal program loans
educational material to religious schoolsa. Prof: That its a fed
program matters because demography changes much smaller proportion
going to specific religion or religion at all compare to 60s most
catholic2. Plurality, Thomas: Secular purpose and neutral
distribution is all that mattersa. Indirect financing - Once money
is handed over, no more state actionb. In order to be indirect,
private choice, money must pass through the hands of
parents/beneficiariesc. Old pervasively sectarian characterization
is anti-catholic3. OConnor/Breyer opinion, controllinga.
Pervasively sectarian rule from Tilton/Richardson not mentioned!
Prof: implicitly repudiating?b. Private choice does not matter is
government responsible for inculcation of religious values? If so,
then violates establishment. It is direct aid, regardless of whose
hands it passes through.c. If there has to be monitoring to ensure
materials only used for secular purposes, the monitoring is ok. We
can trust that teachers will comply.H. Zelman v. Simmons-Harris,
2002, Rehnquist1. Facts: Tuition vouchers for private schools to
poor parents.2. Holding: Upheld because it money is diverted via
private choice and it is neutrally distributeda. Choice - No
government action is pushing, nudging, driving people to religious
schoolsi. Range of choices has to be adequate. Doesnt just look at
private schools looks at all schools, private and public.b. Neutral
- No discrimination, including on religion, in program among
students3. Prof: Like government salary no connection to spending.
Voucher has structure connection, better question is, did govt
create incentive to go to religion?4. Ways to expand range of
choice in order to avoid incentivizing religion: Force suburban
public schools to participate, give more money more schools will
participate, Voucher students can opt out of religious parts of
private school religious practices (Milwaukee method, Lupus fave)I.
Overview:1. Direct aid (Mitchell concurrence) Lemon modified, weak.
No direct aid.2. Indirect (Zelman) beneficiaries choice. 1)
Religion-neutral structure. 2) Genuine choice.J. Freedom From
Religion Foundation v. McCallum, 7th Cir. 20031. Facts: Faith Works
Milwaukee residential program for substance abuse. Self-proclaimed
Faith-intensive program. More than AA, it was evangelical. Money
given to program from state employment department welfare program
to accept welfare-accepting patients. No conditions on payments.2.
First case: Unconstitutional direct payments, no conditions for
only secular use. Even if only paying for secular half, its
interwoven cant separate money.3. Second case: Const.: Choice
between jail and any substance abuse program. Beneficiaries choose
FWM State will pay for program (Posner)a. Only needs equal
opportunity and real choiceb. Does not need to pass through hands
of beneficiaryc. If religious one is best, does not mean that we
need religious one to get worst
IV. Tax-Payer StandingA. Flast, 1968 exception for establishment
clause casesB. Valley Forge Christian narrows, only legislative
spending C. Hein again, only legislative spending, does not matter
that congress made money available to executiveD. Winn, 9th Cir.
2010
V. Free ExerciseA. Basic Principles1. Obvious overlap between
establishment and free exercisea. Strong establishments will
suppress free exerciseb. However, free exercise clause is there for
a reason!i. England: free exercise and establishmentii. Secular
society: no establishment and no free exerciseiii. America: no
establishment and free exercisec. Recall Lupus elements of
religious freedom - Free exercise will do some distinctive work2.
Reynolds v. US, 1879a. Facts: Reynolds is a mormon polygamist,
charged with polygamy. Claimed religious privilegeb. Holding:
Government cannot interfere with mere belief and opinion, but may
interfere with practices.i. Jefferson said so Virginia traditionii.
Polygamy historically bannediii. Human sacrifice analogy (counter:
consent?)iv. Regina v. Wagstaff allowed parents to let child die
without seeing doctor but that was negative act, not positivec.
Most often cited for belief/action distinction (Smith)i. This
distinction makes free exercise practically uselessii. Unless
excluded middle: coterminous with other rights3. Cantwell v.
Connecticut, 1940 JW playing phonograph4. McDaniel v. Paty, 1978a.
Facts: statute barring clergy from holding officeb. Holding: Law
deprived McDaniel of first amendment rights of free exercisei. Law
not useful for original purpose; no rational basis for
discriminationii. Madison: such laws punish those in religious
profession with deprivation of rightsiii. Witherspoon: it makes no
sense that one can hold office after being rejected as unfit for
clergy but not while one is a respectable clergymanc. Brennan,
concurrence: establishment clause not only not a defense, it
actively prohibits such legislationd. Exclusion/discrimination case
equal protection5. In the beginning, free exercise tied to other
rights free speech, free associationB. Mandatory accommodation -
Religious privilege/exemption or religious discrimination?1.
Sherbert v. Verner, 1963, Brennana. Facts: 7th-day Adventist fired
because she refused to work on Saturday. Applied for unemployment.
Denied because she could work, but made personal choice not to.b.
Rule: Free exercise must be accommodated if:i. 1 Reason for
exemption request is religiousii. 2 There is a substantial burden
is placed on free exercise of that religion.iii. 3 Compelling state
interest does not outweigh the interest of free exercise rights.
Only gravest abuses, endangering paramount interest give occasion
for permissible limitation. If compelling interest exists, must use
least restrictive means.c. Holding: Yes burden, no compelling
interest outweighing. State cannot condition benefits so as to
constrain a worker to abandon religious convictions respecting a
day of rest.i. Burden - It may be indirect, but the purpose and
effect matters indirect effect is just as bad. Pressure upon her to
forego her religious convictions. Speiser v. Randall does not work
to say benefits are a privilege. Granting of benefits may not be
used to deter free exercise. There does appear to be burdensome
discrimination the statute excuses Sunday worshippers.ii. No
Compelling Interest - Interest in preventing fraudulent claims is
not considered because state did not bring up this argument to
state supreme court. Also, narrowly tailored legislation can
prevent fraudulent claims. Unlike Braunfeld v. Brown state had an
interest in choosing one day for rest. It did so by selecting
majority Christian day of rest. Simply made other faiths more
expensive, but secular purpose could not have been performed
another way.iii. Exemptions are not establishing religion simply
enforcing government neutrality in the face of religious
differencesd. Stewart, concurrence: Concur because free exercise
demands positive protection, establishment clause read too broadly.
There seems to be a conflict between establishment clause and free
exercise clause jurisprudencee. Harlan, Dissent: Regardless of
whether it was religious, it was still a personal reason. This
overrules braufeld v. brown. Forces court to figure out whether
behavior is religiously motivated. Const. allows state to provide
and define religious exemption or not.f. Coercion more evident in
Reynolds! Still, court finds coercive burden in disqualification.
Change?g. Is it about privilege? Or discrimination? - Is it like
Paty? Going back, the court does mention that Sunday privilege
exists and not others.2. Versions of coercion understanding
Sherbert v. Vernera. 1 burden on religious practice personal
reasonsb. 2 - secular causes privileged over analogous religious
causes- working on certain days preferred over working on other
days - compelling interestc. 3 sectarian discrimination other
exemptions3. Thomas v. Rev. Bd. of Ind. Employment, 1981, Burgera.
Facts: Thomas left his job when he was reassigned from materials
production to actual weapons production. As a JW, he did not think
weapons production was moral. He took a stricter interpretation of
JW scripture than his coworker. Denied unemployment benefits.b.
Holding: Religious, burden, and no compelling interest. Violates FE
cl.i. Testimony crucial in deciding whether it is religious belief.
Specific articulation does not matter. Intrafaith disagreement does
not concern ct.ii. Burden because choice forced between fidelity to
religious belief or cessation of work.iii. No compelling
interest/least restrictive means. No evidence that bad situation
might result from exemptions. iv. No establishment simply
accommodation under Vernerc. Can free exercise clause be construed
to protect moral conscience? (Seeger)d. How is it different than
Sherbert?4. Wisconsin v. Yoder, 1972, Burgera. Facts: Didnt want to
send kids to high school. Wanted them to learn Amish ways at
home.b. Rule: Sherbert v. Verner testc. Holding: Religious, burden,
and no compelling interest. Violates FEi. Religious, not person
preference: Yes, belief in pulling kids from high school is a deep
religious conviction, shared by organized group, and intimately
related to daily living. Historical way of life. Expert
testimony/Evidence of sustained faith.ii. Burden exists: Even if
its on conduct not belief (contra Reynolds?). Uniformity does not
prevent burden if it unduly burdens.iii. No Compelling interest:
Amish sufficiently prepare their children for life. Amish have been
a successful social unit. There is social value to having groups
who seclude themselves from society. Amish children still receiving
vocational education. No evidence that Amish children are being
exploited.iv. Addressing dissents concerns: Holding does not bear
on the situation where parent and child have conflicting interest.
State has no right to direct childs religious upbringing. Strong
presumption in favor of parents right to direct childs education
(Pierce). d. Dissent, Douglas: Liberty of children? Religion is an
individual experience (this is western bias!). Parents are holding
kids back from experiencing world. The law and order record of the
Amish is irrelevant.e. In Yoder, Court seems to use version 1 of
Vernerf. Courts are not buying that secular humanism is a
religiong. Exemptions from secular criteria usually lose: Not a
substantial burden, Compelling interest. h. Yoder, is a very
narrow, as-applied decision5. Formulation of accommodation cases:a.
Trigger: Substantial burden on religious practicei. Definition of
religion tax exempt status. Argument by analogy. Sincerity in
religious beliefs the more material incentives, the more skeptical
about sincerity.ii. Burden choice between x and faith suffices as
burdenb. Test - non-exemption necessary to compelling state
interestc. In early 80s, trigger part nuanced, test is weakenedd.
Steady erosion toward Smith6. US v. Lee, 1982, Burgera. Facts:
Amish carpenter failed to file social security tax returns for
employeesb. Holding: paying taxes and receiving benefits is
religious burden, but there exists a compelling interest in social
securityi. There is already an exception for self-employed
peopleii. Mandatory participation is indispensable to the fiscal
vitality of the s.s. systemiii. There is no pricinpled way to
distinguish between general taxes and those imposed under s.s.
(tax, not a penalty)iv. Tax system could not function if religious
groups could object to spending of moneyc. Self-employed exemption
only applies to religions in existence before 1950s const.
problems?d. Is uniformity really what the case is about s.s. is
earmarkede. Compelling interest test is weakened it is met, but in
a weak way7. Bob Jones University v. US, 1983, Burgera. Facts: BJU
prohibits interracial datingb. Holding: Loss of 501c3 status is
huge religious burden, but state has a compelling interest in
prohibiting racial discriminationc. No discussion of strict
as-applied exemption test further weakened8. Goldman v. Weinberger,
1986, Rehnquista. Facts: Goldman not allowed to wear his yarmulke
on military base because it is not part of uniformb. Holding:
Regulations challenged reasonably and evenhandedly regulate dress
in the interest of the militarys interest for uniformity. Court
must give great deference to the military, even when regs
challenged on first amendment grounds.i. Professional judgment of
air force is that standardized uniforms encourage subordination or
identity in favor of the group only ranks matterii. Military life
may be more objectionable, but first amendment does not require
military to accommodatec. Concurrence, Stevens: Uniformity is good
because it means uniform, equal treatment for all members.
Exceptions would require valuation how far do the exceptions go?d.
Brennan, Dissent: Decision effectively bars orthodox jews from
fulfilling religious duty. Military must state a specific reason
for uniformity, not just state that they want uniformity. Will
uniformity be lost by a yarmulke? Current exceptions allow
non-visible religious things doesnt this discriminate against
religions that wear visible things?e. Special enclave special
concerns, OLone prison special toof. Dominant culture concerns9.
Lyng v. Northwest Indian Cemetery Protective Assoc., 1988,
OConnora. Facts: govt wants to permit harvesting and construct a
road through a portion of national forest that has been
traditionally used for religious purposes by three native American
tribes.b. Holding: No substantial burden because no coercion to
violate or penalty for not violating religious beliefi. Bowen v.
Roy, 1986: Mother did not want daughter to be given social security
number. Ct. ruled that FE clause could not be understood to require
govt to conduct its internal affairs in ways which comport with
religious beliefs of particular citizens.ii. Cannot weigh the
centrality of religious belief or its objective nature that would
require determining truth of underlying religious beliefsiii. The
crucial word is prohibit the FE clause is written in terms of what
govt cannot do to individual, not what individual can command
government to do. It is government land! Government could not
function if it tried to satisfy all citizens beliefs!iv. Under
Yoder, accommodation only required when the statute is coercive in
nature.c. Dissent, Brennan: If religious groups show centrality,
and that govt action will prevent such a central practice, it will
be a substantial burden regardless of the nature of coercion.
Slippery slope of exceptions not before the court today.d. Public
land is it really an internal govt affair? Lupu: easement on
land?10. Employment Division v. Smith, 1990, Scaliaa. Facts:
Unemployment comp not granted to Smith. Fired from drug rehab
because he smoked Peyote on his own time.b. Holding: The 3-part
Sherbert test is inapplicable to challenges against generally
applicable, neutral laws. FE does not grant a privilege.i. A
permissible reading of the text is that FE clause prohibits taxes
enabled with the object of preventing FE. However, such a reading
does not prevent the govt from enacting a tax that might have the
incidental effect.ii. Yoder is about parental rights (Pierce, etc.)
Hybrid rightsiii. Sherbert/Thomas unavailable for work without good
cause. Those cases have nothing to do with across-the-board
criminal prohibitionc. OConnor, concurrence: Rejects courts
reasoning. Exercise is tied to action.d. Not limited to criminal
law, civil law violations face same fatee. More restrictive than
Reynolds? At least Reynolds alludes to peace and good order as a
prerequisite to general applicability stricter?f. After Smith,
State constitutions appealed to, state legislation, and RFRA
passedg. Is Smith Correct? Line drawing. Smaller govt at
founding.h. Did Smith just confirm what the law was or did it make
a difference? Some cases that would have bee`n uncertain are now
dead-losers.i. Lower courts did not let hybrid claims expand
religion clausesj. SYT required determination of substantial burden
perhaps killed Smith11. Lukumi Babalu v. Hialeah, 1993, Kennedya.
Facts: Santeria religion practices animal sacrifice. City outlaws
cruel killing of animals.b. Rule: A law that is not generally
applicable or neutral toward religion must meet compelling
interest/least restrictive means standardc. Holding: Not neutral,
not generally applicable ordinances do not survive strict scrutiny
standardi. Not neutral - the ordinances had as their object the
suppression of religion. The ordinances targeted the central
element of Santeria worship. Use of words sacrifice and ritual in
statute. ii. Not generally applicable because they are
underinclusive they only achieve govts stated interest as against
religious conduct. In effect, the statutes only really punish
Santeria. Exemptions for kosher slaughter. Exemptions for small
food establishments. Smith noted that, when exemptions are
available, govt may not refuse exemption for religion without
compelling reason.iii. Statutes ban unnecessary killing atty
general admitted that religious killing is classified as
unnecessary. Government deciding religion is unnecessary!iv. Do not
meet strict scrutiny - Overbroad they prohibit Santeria sacrifices
even if carried out in a sanitary manner.d. Notice that post-smith,
Lukumi test does not include substantial burden is it because this
is a religious question? What about disputes over property? General
rule: Courts should defer to internal decision-making body, if it
is a hierarchical church. If courts can find neutral principles of
law, it can help them resolve dispute.e. Lukumi interpretations of
Smith: Does one exemption means religion require exemption or
compelling interest? Or, do exemptions show non-neutrality, but one
exemption is not dispositive?12. Christian Legal Society v.
Martinez not FE case, but FE undertonesa. Might have been a test of
what is and isnt a neutral rule but wasnt lawyered that wayb.
All-comers was definitely a neutral rule, but what about written
rule?c. No showing of impact on religious freedomC. Permissible
statutory Accommodation1. City of Boerne v. Flores, 1997, Kennedya.
Facts: RFRA requires all federal government and state governments
to follow pre-smith SYT FE test. Justified under 14th amend.s
enforcement power.b. Holding: RFRA struck down. 14th amend.s
enforcement power is remedial. Ct demands congruence and
proportionality to documented harm.2. Gonzales v. O Espirita
Beneficiente Uniao Do Vegetal, 2006, Robertsa. Facts: Drug case -
RFRA applied to Fed govt. District ct found evidence of dangers of
drug use in equipoise. Feds do not even challenge const. of RFRA.b.
Ct simply has to apply RFRA, no general applicability test from
Smith.c. Still might be subject to state drug laws, but exempted
from federal ones.3. RFRAs probably not seperation of powers
problem. Simply modifies congresss bills enacted through art. I
powers. Using supreme cts old test does not mean congress is
usurping power.4. State RFRAs: Lund article - State RFRAs ignored.
Establishment clause problem? neutrality between religion and
non-religion religious privilege? Conflict between the clauses?
Room in between? Imposition on third-parties?5. Estate of Thornton
v. Caldor, 1985, Burgera. Facts: Civil Rights Act demands
reasonable accommodation. This law went further: Connecticut law
did not allow any employer to fire an employee for not showing up
to work on the employees chosen Sabbath.b. Rule: applied Lemon
testc. Holding: Statute goes beyond incidental or remote effect of
advancing religion its primary effect is advancing a particular
religious practice. Violates ECi. The statute arms
Sabbath-observers with an unqualified and absolute right not to
work on that dayii. Imposes on business a duty to conform to
religious practices of employeesiii. No exceptions:There is no
exception for special circumstances. No exception for financial
ability of employer to accommodate. No consideration as to whether
employer has tried to accommodate.iv. Violates neutrality by
forcing others to conform to certain religious sensibilities
(Learned Hand)d. OConnor, Concurrence: Impermissible effect because
it conveys message of endorsement. Anti-discrimination law has a
valid secular purpose- but this law gives a privilege to
religion.e. Forces private party to bear burden. Privately created
burden. Simply transfers burden. Free exercise especially does not
require private accommodation to government burdens.6. LDS Church
v. Amos, 1987, Whitea. Facts: 702 of Civil Rights Act exempts
religious orgs from title VIIs prohibition against employment
discrimination of the basis of religion. Mayson fired from gym
because he was not a member of LDS church.b. Rule: Lemon testc.
Holding: exemption does not violate ECi. Secular Purpose - It is a
permissible legislative purpose to alleviate significant
governmental burdens. It is a significant burden to force a
religious organization to predict which of its activities a secular
court might consider religious. Congress purpose was to minimize
government interference in the decision-making process of
religions.ii. No entanglement it effectuates a more complete
separation!iii. No advancement of religion by government. Its true
that religious groups have been more able to advance their
purposes, but a law is not unconst. merely because it allows
churches to advance religion No evidence that churches will use
this advantage in the profit-making world Distinguishes Caldor
Conn. law gave sabbatarians force of law. Here, govt merely
allowing church to fire, not giving church force of law.
govt/private action distinction no legal obligation. That 702
singles out religious orgs is ok government is allowed to alleviate
a significant govt burden on religion No equal protection argument
does not discriminate on religion, simply alleviates a burden
placed on religionsd. Brennan, concurrence: exemption should be for
any nonprofit; otherwise, state deciding what is religious and what
isnte. OConnor, concurrence: lemon test is problem: effect does
advance religion, but that in itself is not a problem. Endorsement
is problem. Exemption for for-profit religious orgs remains open
const. question.f. Distinct from Caldor:i. Government imposing
burdenii. Sect-neutral exemptioniii. Organizations are free to only
hire people with consonant views exception in title VII simply
allows religions to do that.g. In Amos, CRA exception is to only
religious discrimination in regards to ALL employeesh. Ministerial
exception to all employment discrimination law provisions for
ministerial employees: Applies when duties are primarily religious
and involve communicating the faith. Application of employment laws
would mean deciding a religious question.i. EEOC v. Catholic
University, D.C. Cir. ministerial exception survives Smith: Rests
on ec and fecii. Even Smith says courts should not decide religious
questions7. Caldor/Amos test:a. Is there a government burden on
religious freedom? Accommodation is dependent upon relieving a
burden, not sponsoring preference. b. govt merely allowing church
to fire, not giving church force of law.c. Sect-neutral?8. RLUIPAa.
Prisoner section of RLUIPA responding to OLone v. Shabazz great
deference to prison officials, allows even religious-specific
rulesb. General Rule: i. Substantial burden on religionii.
Compelling interest/least restrictive meansc. Const. of land use
not test by s. ct. but other cts rejected such challenges9. Cutter
v. Wilkinson, 2005, Ginsburga. Facts: congress held 3 years of
hearing finding that frivolous or arbitrary barriers impeded
institutionalized persons.b. Holding: There is room between the
joints of the religion clauses. Compare Smith with Amos. RLUIPA
fits within the corridor between the clauses.i. Const. because it
alleviates government created burdensii. Prescriptions are neutral
among different faithsiii. Prisoners are dependent upon government
permission to do thingsiv. Statutory response to Goldman
accommodation of religious apparelv. RLUIPA does not elevate
accommodation over safety: Distinguishes Caldor. Context matters in
statute application. Mindful of effects on prisoners/guards,
security of prison, and the fact they are prisoners.vi. Amos
religious accommodations need not come packaged with benefits to
secular entities.c. Lupu: In order to justify religious
accommodation, religious liberty must be substantially burdened as
in Prisons.d. Minimize religious privilege by making religious
accommodations available to the nonreligious, if possible10. Const.
of RLUIPA land use not test by s. ct. but other cts rejected such
challengesa. Issue 1: typically, whether forcing church to spend
more money is a substantial burdenb. Issue 2: Compelling interest
third party interest (neighbors) and interest of city (taxes)?
Least restrictive means (regulate size)?c. In essence, who should
give? All about trade-offs
VI. Intro/HistoryA. All human organizations feel need for a
particular policy on religion1. Establishmenta. Character of the
state2. Exercise3. Why?a. Rival to stateb. Potential partnerc.
Produces culturei. loyaltiesii. Produces norms4. First assignments
show narrative of religion policies in the USB. Classic
establishment1. Church of England strong-form establishmenta.
direct government control over appt of clergyb. bishops in house of
lordsc. parliament approved articles of faith and book of common
prayerd. Religion tests for all important officesi. Colonies also
had this requirement, though a looser versione. Mandatory church
attendance - finesC. Articles of Confederation had a weak policy1.
Mutual defense pact state attacked for any reason religion
mentioned as example 1D. Varied range of religion policies as of
1780s1. Some New England states had multiple establishmentsa. Every
town chose a churchb. One could individually donate to a church of
ones choosing, providing it was an approved type of church2.
Virginia historically had a singular Anglican establishment3. None
in Rhode Island or Pennsylvania or MarylandE. Virginia story1.
After revolution, Church of England affiliation was lost2. 1780s,
Patrick Henry wants to reinstate support of church Christian
teaching billa. multiple establishment system individually
designated taxb. one could pay salaries of chosen minister or pay
for building of chosen churchesc. secular purpose of education of
morality, peace, general knowledge common point of viewi. then
again, it is biased in favor of protestants, the largest portion of
communityii. Protestantism was uncontrovertibly considered good3.
Jefferson, away in France, had previously introduced a bill
establishing religious freedom4. Madison becomes chief opponent of
teaching bill writes memorial and remonstrancea. Some arguments
related to first principles rights, theologyi. 1 - Duty to Creator
higher than that of civil society. Duty to Creator comes to an
individual by reason and conviction inherently enlightenment and
individualist view Religion wholly exempt from states cognizance
separationist view What about codes that accidentally affect
religionb. Some arguments based on empirical facts slippery slope,
past abuses of clergyc. Recurrent themes nowadays and then:i.
Religion is necessarily voluntaryii. Equality of sectsiii. State
corrupting religioniv. Civil peace threatened by sectarian
rivalry5. Jeffersons Billa. No one coerced to support ministryb. No
one prosecuted by government for their opinions or beliefsF.
Religious character of US?1. Not in preamble blessings2. Oaths, but
choice to affirm3. No religious test for federal office most
important!a. Of course, a religious test could be inflicted by
citizens via votes4. the year of our lord the date of const.5. 1st
amendmenta. first substantive thing said was Reynolds in 1879b.
Bradfield v Roberts 1899 first establishment clause case money to
religious hospital no establishmentG. Everson all justices agree
that the Virginia story is the complete history of first
amendment1. incorporates establishment clausea. Incororation?
Thomas2. Blacks at least is potentially quite sweeping holidays,
tax exemptions, etc?3. Contributes to lemon test4. 9 judges agree
on history, but do not agree on issue of bus tokensH. Rehnquists
dissent in Wallace v. Jaffree weve been basing originalist argument
on false history1. Madisons role is overemphasized Madison was a
politician at the time of drafting, not philosophera. Establishment
clause as a peace treaty no one church wins!I. Rehnquist unsettles
history, but does not resettle - 4 major themes1. drafting
historya. Housei. Madisons draft conscience disconnects rights of
conscience and religious belief concerned w/ coercionii. Carroll,
catholic, really concerned about coercioniii. touching formulation
voted downb. Senatei. Votes down non-preferentialist clause,
decides that congress shall not establish articles of worshipc. Is
free exercise = to conscience, or broader?d. Respecting an
establishment no drafting history with this phrase2. 18th and 19th
century practicea. Thanksgiving proclamations, chaplain, money for
missionaries3. 19th century commentarya. Joseph Story govt can
promote Christian good order4. the second disestablishment (14th
amendment, 1868)a. by the 1830s, state establishments were goneb.
Christian foundations of common law are challengedc. Significant
immigrationd. Freedmen were denied religious freedom by the
southern states