Establishment Clause I (Everson and Abdington) Lecture 9 Chapter 4 Establishment Clause I (Everson and Abdington)

This Lecture We switch to the Establishment Clause Pages 131-145 Everson Abdington Compulsory School prayer

The Establishment Clause The text: Congress shall make no law respecting an establishment of religion Three interpretations Wall of separation (Jefferson Letter) A wall, but it only means government will not favor one religion over another Neutrality The literal meaning This is a particularly difficult part of constitutional law

Bradford v. Roberts (1899) Bradford v. Roberts (1899) $30,000 in federal money went to build a medical facility owned and operated by the Sisters of Charity, who were Roman Catholic The Court upholds this appropriation because there was a secular, non-religious purpose It wasn’t important that it went to a religious group So money could go to religious institutions if it for a secular reason The Court wouldn’t hear another establishment case until 1947

Everson v. Board of Education (1947) Background New Jersey had a law allowed local school boards to transport students to and from school Even if it was to a private or religious school Ewing Township, NJ allowed for reimbursement for parents sending children to schools since it had no public schools of its own This included four Catholic schools Most parents got about $40 per child Everson challenges this as a taxpayer of the township

Everson v. Board of Education- II Arguments For Everson The Establishment Clause should be incorporated against states/localities This was allowing public money to go for a religious purpose For Board of Education of Ewing Township Cochran v. Board of Education (1930) allowed for textbooks to be paid for all children, even if in religious schools This is part of the state’s police powers This does not aid a religious institution, but goes to parents

Everson v. Board of Education- III Justice Black rules for a 5-4 Court He tries to look at the meaning of the language in the First Amendment Madison wrote that no one should be taxed to support a religious institution of any kind Means at least: Government cannot set up a church Cannot pass laws to aid one religion, aid all religions or favor one over another Cannot force one to believe or profess a belief against their faith No person can be punished for professing their belief or disbelief No tax, however small can go to a religious institution Government cannot participate in church activity These add up to a “wall of separation between Church and State”

Everson v. Board of Education- IV More from Black, J. However, despite this language, the statute is upheld He finds that this was equally applicable to all parents in the district The State may not aid religion, but may not handicap it either This money only goes to parents for transportation, not the religious schools The aid program had a secular purpose This case also incorporates the Establishment Clause against the states/localities

Everson v. Board of Education- V Dissents Jackson, J. joined by Frankfurter He agrees with the reasoning but not the results Says this is making a religious institution at business Rutledge, J. joined by Frankfurter, Jackson and Burton He quotes the Virginia religious freedom statute He says it argued for a complete separation This forbids any public aid or support for religion He feels this ends up aiding religious teaching and training Again, this dissent agrees with the approach, just not the direction the majority took it

Board of Education v. Allen (1968) New York had a statute that provided free textbooks to all school children grades 7-12, including private ones The majority ruled for the state, saying that the purpose was secular education Black, Douglas, and Fortas dissented They said the textbooks go to the heart of education within a parochial school, while transportation did not Advocacy groups Page 138, Box 4-3 Blaine Amendments

Engel v. Vitale (1962) Engel v. Vitale (1962) Challenge to a New York law requiring teachers to recite a prayer written by the school board of regents Children did not have to participate they could sit silently or leave the room The NYCLU challenged the state had written the prayer Black writes for the majority No business of government to compose official prayers for any group or to recite them Stewart thought it was rather innocuous

School District of Abdington Township v. Schempp (1963) Background Challenge to reading from the Bible and reciting the Lord’s Prayer in public schools Children could leave the room, but could miss other announcements or be labeled badly Bible reading was much more prevalent than what was in Engel v. Vitale The plaintiffs were Unitarians that did not agree with this One of their children used their time to read from the Koran rather than the Protestant Bible, so they were suspended The ACLU takes on the case, and it continued beyond graduation They argued this favored some religions over others The Murray case was similar, but brought by atheists

School District of Abdington Township v. Schempp- II Arguments For Abdington School District This was done in a secular manner and not for proselyting, indoctrination, or instruction Participation is voluntary Practice is neutral For the Schempps Bible reading is a devotional or religions act Preference is given to Christianity It is mandatory Violates free exercise by making those with other religious views to excuse themselves

School District of Abdington Township v. Schempp- III Justice Clark rules for an 8-1 majority Ends up setting up a test for lower courts to follow 1) What are the purpose and primary effect of the enactment 2) If either the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution So in easier terms 1) Secular purpose requirement 2) Primary effect is neutral

School District of Abdington Township v. Schempp- IV Clark, J. In application: These practices are religious in character No mitigation in allowing students to leave the room These are not minor violations The decision does not create a “religion of secularism” Bible reading would be allowed if not devotional The free exercise clause cannot be used as a mechanism for the majority to use the machinery of the state to practice its beliefs

School District of Abdington Township v. Schempp- V Concurrences Douglas, J. Public funds were essentially being used to promote religion Brennan, J. Not every involvement of religion in public life is unconstitutional Goldberg, J. joined by Harlan, J. Further agreement

School District of Abdington Township v. Schempp- VI The Stewart dissent He is again out on the limb by himself He sees the key issue as one of coercion

Reaction to Vitale and Abdington Public opinion very much against at the time Much of the South simply ignored the cases Was part of the issues that helped to create the modern “religious right” We will come back to school prayer a bit later

Next lecture Next lecture Pages 145-159 The Lemon Test Aid to religious schools