Religion in Public Schools in U.S., Germany, and Canada Class 13 October 1, 2008

First Amendment of U.S. Constitution Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof... “ Establishment Clause Free Exercise Clause Is the Establishment Clause applicable against the states?

Applicability to the States – Establishment Clause was first found to be incorporated and applied to the states in Everson v. Board of Education (1940). Justice Thomas disagrees with this

Theories ESTABLISHMENT CLAUSE THEORIES: (1) Separationist theory; (2) Nonpreferentialist theory; (3) Accommodation : Example: Allegheny County v. Greater Pittsburgh ACLU (1989)

Discrimination amongst religious groups Generally agreed this is only allowed if strict scrutiny is met.

Non-discriminatory regulations 1940s-1970: “Wall of separation” approach in Everson v. Board of Education, 330 U.S. 1 (1947) (Justice Black, writing the majority, analyzed the historical reasons for enacting the Establishment Clause) Definition of establishment: Neither

“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. Neither can force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be puished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. 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 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.”

Lemon Test era 1970s What is the Lemon test?

Lemon Test era 1970s Lemon v. Kurzman, 403 U.S. 642 (1971): First the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion

Controversy over the Lemon test Scalia, Kennedy, and Thomas want to abandon the entanglement inquiry and the Lemon test. Souter, Stevens, Ginsburg and Breyer want to keep the Lemon test though Breyer may be prepared to abandon or modify the entanglement prong

School Prayer Is it constitutional?

School Prayer: U.S. Engel v. VitaleEngel v. Vitale (1962) (NY state regents composed non-denominational prayer) (Black J.) (unconstitutional) Abington School Dist. v. Schemp (1963) (Bible verses, Lord’s Prayer) (Clark J) (unconstitutional) Wallace v. Jaffree (1985) (one moment of silence “for meditation or voluntary prayer”) (Stevens J.) (unconstitutional) Lee v. Weisman (1992) (clergy-delivered prayer at public school graduation) (Kennedy J.) (unconstitutional), Santa Fe Ind. Sch. Dist. v. Doe (2000) (student-delivered prayer at school football game) (Stevens J.) (unconstitutional),

Freedom of Religion: Germany Article 4 of the Basic Law - All agreed freedom of religion a fundamental right, but relationship of church and state subject to disagreement. Compromise decision to incorporate 5 articles of 1919 Weimar Constitution into Basic law.

Other provisions 3(3) – equal treatment of all people regardless of religious beliefs 33(3) – eligibility for public office or civil service shall not depend on religion (like A. VI of U.S. Constitution) 7(2) AND (3) – religious instruction in public schools

Public Schools and Religion in Germany Diversity of public schools Private school sujbect to state supervision 7(3) religious instruction shall form part of the curriculum in state schools except nondenominational state schools (which ar rare in Germany). Denominational state schools are also rare. Most public schools are interdenominational schools Gemeinschaftsschule – can emphasize Christian faith but can’t require faith or proselytize Parents have the right to decide whether children receive religious instruction 7(2)

School Prayer: Germany 1979 decision of FCC School Prayer Case, 52 BVerfGE 223 (1979), available in German at 3.html 3.html

School Prayer: Germany Prayer in interdenominational public schools is constitutional, even if parents or children object, so long as pupils are free to control their own participation in the prayer Discrimination against non-participating students unlikely if prayer only held at the beginning of each school day. Teachers can explain to other students why a student doesn’t want to participate There may be rare cases where a prayer may unduly burden a student – if emotionally weak, etc… then it may be necessary to prohibit the prayer to protect the negative freedom of religion of the individual student

School Prayer in Canada Charter s. 2(a) 2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion Zylberberg v. Sudbury Board of Education (Ontario Court of Appeal)