1. The Establishment Clause POL318 Civil Liberties and Civil Rights

2. 1st Amendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

3. Overview of Establishment Clause Cases History of Wall of Separation Development of Lemon Test Standard Erosion of Lemon Test Examples: –Public Support for Private Schools –Prayer and Religion in Schools –Use of Public Facilities by Religious Groups –Religious Displays

4. Wall of Separation Separationist –Solid wall of separation Accomodationist –Non-discriminatory support or aid to all religions –Bar adoption of national religion

5. "...building a wall of separation between Church & State"

9. Everson v. Board of Education (1947) Who were the parties? What were the facts? What was the legal question? What was the holding? What rules were established?

10. Black’s Opinion “The ‘establishment of religion’ clause of the First Amendment means at least this: neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another... No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups, and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between church and State."

11. Principles of Everson Incorporated establishment clause through the 14th amendment. Do not want to prohibit state from extending general law benefits to all citizens regardless of their religious beliefs State should not favor or handicap religions Wall of separation, but may not be breached if –purpose of aid is secular –aid indirect –beneficiaries are children, not churches

12. Abington Township v. Schempp (1963) Law must have secular purpose The effect must be to neither advance nor inhibit religion

13. Walz v. Tax Commissioner of NYC (1970) Burger court’s first establishment case State property tax exemption Introduced excessive entanglement concept Tax exempt status helped retain separation between religion and state

14. Lemon v. Kurtzman/ Earley v. DiCenso (1971) Who were the parties? What were the facts? What was the legal question? What was the holding? What rules were established?

15. Principles of Lemon v. Kurtzman Lemon Test –Has secular purpose –Neither advances nor inhibits religion –Does not create excessive entanglement between the state and religion

16. Hypothetical Case The legislature of the State of Limerick votes to make Catholicism the official state religion. Mahatma Gandhi, a state resident who is a Hindu, challenges this action on First Amendment grounds. The state claims that the First Amendment Establishment Clause only applies to the federal government. What is the result?

17. Review Hypothetical Case: Tammy attends the Saints and Sinners Parochial School. A government program provides bus service to and from school for Tammy and her classmates, as well as for children at public schools. Is Tammy’s bus transportation a violation of the Establishment Clause of the First Amendment? Lemon Test?

18. Agostini v. Felton (1997) Who were the parties? What were the facts? What was the legal question? What was the holding? What rules were established?

19. Principles of Agostini Federally funded program for remedial, supplemental instruction by public employees at private schools is not invalid under establishment clause. Criteria: –Does not result in governmental indoctrination –Does not define participants with reference to religion –Does not create excessive entanglement

20. Zelman v. Simmons-Harris (2002) Who were the parties? What were the facts? What was the legal question? What was the holding? What rules were established?

21. Principles of Zelman Not subject to establishment clause challenge if - neutral with respect to religion - aid directly given to a broad class of citizens who redirect aid to religious schools as a result of private choice - program permits participation of all schools

22. School Prayer Engel v. Vitale (1962) School District of Abington Township v. Schempp (1963) Wallace v. Jaffree (1985) Lee v. Weisman (1992) Santa Fe Independent School District (2000)

23. Lee v. Weisman (1992) Who were the parties? What were the facts? What was the legal question? What was the holding? What rules were established?

24. Principles of Lee v. Weisman ”A state-sponsored and state-directed religious exercise in a public school" violates establishment clause Coercion Religious and beliefs expression cannot be prescribed or proscribed by the government

25. Teaching Religion in Schools Epperson v. Arkansas (1968) Edwards v. Aguillard (1987)

26. Epperson v. Arkansas (1968) Challenged constitutionality of law criminalizing teaching of evolution U.S. Supreme Court voided law since it was not religiously neutral

27. Edwards v. Aguillard (1987) Who were the parties? What were the facts? What was the legal question? What was the holding? What rules were established?

28. Judgement Day: Intelligent Design on Trial

29. Additional Approaches Non-preferentialism Endorsement Coercion Social Conflict Unincorporate establishment clause

30. Public Facilities McCollum v. Board of Education (1948) Zordach v. Clausen (1952) Widmar v. Vincent (1981) Board of Education v. Mergens (1990) Lamb’s Chapel v. Center Moriches Union Free School District (1993) Rosenberger v. University of Virginia (1995) Good News Club v. Milford Central School (2001)

31. Religious Displays Lynch v. Donnelly (1984) County of Allegheny v. ACLU (1989) McCreary, Kentucky v. ACLU of Kentucky (2005) Van Orden v. Perry (2005)