Government and Religion October 5, 2017

Constitutional Provisions “Congress shall make no law respecting an establishment of religion. . .” This clause concerns the degree to which the government may constitutionally support religion or promote religious belief. “[Congress shall make no law] prohibiting the free exercise thereof.” This clause addresses the extent to which government actions may constitutionally interfere with individual religious practice. Establishment Clause Free Exercise Clause

The Establishment Clause

Wall of Separation Historians agree that the authors of this provision intended to prohibit the naming of an official state church, but they disagree as to what other forms of church/state involvement constitute establishment. Some experts believe that the framers intended to build a wall of separation between church and state.

Accommodation In contrast, other scholars argue that the founders never envisioned so extreme an interpretation of the Establishment Clause. They believe that the authors of the Constitution favored a society in which government would accommodate the interests of religion, especially Christian religion.

Middle Ground The Supreme Court has adopted a middle ground on the issue of establishment of religion, attempting to balance the concerns of groups favoring a strict separation of church and state and the values of groups calling for accommodation between government and religion.

State Aid to Religious Schools In Everson v. Board of Ewing Township (1947), the Supreme Court ruled that state aid to religious schools that had a "secular legislative purpose“ and "neither advance[d] nor inhibit[ed] religion" was constitutional.

Parental Choice & School Vouchers Parental choice is an educational reform aimed at improving the quality of schools by allowing parents to select the school their children will attend. Under a parental choice program, the state gives parents a voucher that provides a type of scholarship to be paid to the school that the parents choose for their child to attend. Parental choice programs raise a concern under the First Amendment if the vouchers can be used in religiously affiliated private schools.

Zelman v. Simmons-Harris In 2002, the Supreme Court upheld an Ohio parental choice program for low-income families attending the Cleveland City School District. Students who qualified could attend the private school of their parents’ choice or a public school in an adjacent district and receive tuition assistance grants from the state. Most private schools were religious.

School Prayer School prayer is perhaps the most controversial Establishment Clause issue.

Engel v. Vitale (1962) In Engel v. Vitale (1962), the Supreme Court ruled that the daily classroom recitation of a prayer written by New York's state board of regents violated the First Amendment. "[I]t is no part of the business of government to compose official prayers for any group of the American people to recite as part of a religious program carried on by the government," declared the Court.

Praying in Schools The Supreme Court has ruled that the Establishment Clause prohibits government written, government sponsored, and government organized prayer only. Individual students can freely pray as they wish (as long as they aren’t disruptive, etc.).

State Prayer & Free Speech As private citizens, teachers and other school officials have freedom of religion and freedom of speech. In their official capacities, however, they are agents of the government and are bound by the Establishment Clause.

Kim Davis A similar principle applies to Rowan Kentucky County Clerk Kim Davis. A federal judge jailed her for refusing to issue marriage licenses to same-sex couples. She cited religious liberty.

Religious Display The constitutionality of public displays of religious symbols depends on the history and purpose of their display. Monuments with a secular purpose are constitutional; those erected to advance a religious agenda are not.

The Free Exercise Clause

Free Exercise of Religion Laws aimed at preventing Jehovah’s Witnesses from distributing literature door-to-door Laws targeting groups distributing literature in airports Efforts by schools to prevent groups from distributing Bibles Childhood immunization laws Driver license photo requirements Compulsory school attendance laws Jail house menus Deliberate efforts to restrict activities of small groups Incidental impact of general laws and procedures

Deliberate Restrictions The Supreme Court has upheld these sorts of restrictions on religious practice only when the government has been able to justify its action on the basis of a compelling or overriding government interest that could not be achieved in a less restrictive fashion. This is a very high standard.

Incidental Impact States laws that have an incidental impact on religious freedom are constitutional so long as they serve a valid state purpose and are not aimed at inhibiting any particular religion.

Employment Division v. Smith (1990) The Supreme Court ruled that the state of Oregon could deny unemployment benefits to state employees who were fired because a drug test showed that they had used peyote, which is an illegal hallucinogenic drug that is used in Native American religious practices. The Supreme Court ruled that the state had a valid reason for prohibiting drug use by its employees.

What You Have Learned How does the Constitution deal with the relationship between religion and the government? What are the most important issues concerning the establishment of religion What are the most important issues that deal with the freedom of religion?