1. Presentation for POL 101
Dr. Kevin Lasher

2. Freedom of Religion: Establishment Clause
“Congress shall make no law respecting an
establishment of religion or prohibiting the free
exercise thereof …”

3. Established Churches in American Colonies
Established Church = Tax Support (and much more)

4. Established Churches in American Colonies
9 out of 13 colonies had established churches prior to revolution

5. Established Churches in American Colonies
After independence, states were moving away from single established churches

6. Establishment Clause: Framers of 1st Amendment
National government cannot establish a national church
National government (likely) cannot use tax money to support all religion or all religious groups
National government (likely) cannot use other means to support all religion or all religious groups
National government cannot interfere in state actions toward religion (continuing multiple establishments, state religious tests, nurturing aids)
HOWEVER – the national government could engage in certain symbolic religious activities (the actions of the first Presidents)

7. Selective Incorporation
Freedom of Religion
14th Amendment
Selective Incorporation

8. Establishment Clause “Government shall make no law respecting an
establishment of religion or prohibiting the free
exercise thereof …”
GOVERNMENT cannot create an establishment
of religion

9. Establishment Clause: Conclusion
Did 1st Amendment create a “wall of separation” between government and religion?
YES -- a “leaky wall” between government and religion

10. Establishment Clause
20th Century saw the Supreme Court begin to pay a great deal of attention to examining and protecting the freedoms of the Bill of Rights, including the establishment clause of the 1st Amendment

11. Establishment Clause
What is an establishment of religion and how do we decide the “parameters” of government-religion interaction in a modern America where government and religion are bound to interact at some level?
Where are the “holes” in our incomplete wall of separation?

12. Establishment Clause
Look at what establishment clause cases ARE NOT about:
Government NOT directly aiding churches
Government NOT promoting Protestantism, Catholicism, Christianity, monotheism, religion
Government NOT encouraging religious activity of private citizens
Government is avoiding the “core” activities of religious institutions

13. Establishment Clause
Look at what establishment clause cases ARE about:
Schools
Public religion (10 Commandments, monuments, religious displays on public grounds, prayers)
Indirect support – taxes and faith-based programs

14. Establishment Clause
Government and religion are going to interact at some level in American society When and how is this interaction appropriate? What kinds of interaction are permitted under the establishment clause? Schools Private religious and public

15. Everson v. Board of Education of Ewing Township

16. Everson v. Board of Education (1947)
New Jersey law requiring transportation of students to public and parochial schools
Ewing Township policy that public and Catholic school children rode city/county buses and their parents were reimbursed twice yearly
Arch Everson, VP of NJ Taxpayers Association (Protestant group) said this policy violated the establishment clause
No doubt that Catholic students were receiving religious instruction within their own schools
Question: is it permissible for the government to transport Catholic school children to and from their private religious school?

17. Everson v. Board of Education (1947)
“…the Fourteenth Amendment was interpreted to make the prohibitions of the First applicable to state action abridging religious freedom. There is every reason to give the same application and broad interpretation to the ‘establishment of religion’ clause.”
Incorporation of Establishment Clause

18. Everson v. Board of Education (1947)
“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. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished 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 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.’ ”

19. Everson v. Board of Education (1947)
“The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.
New Jersey has not breached it here.”
5 – 4 decision

20. Everson v. Board of Education (1947)
Compared busing to state-paid policemen, fire protection, sewage disposal, public roads and sidewalks (provided to Catholic schools)
Public welfare legislation or general state law benefits
“The State contributes no money to the schools. It does not support them. Its legislation, as applied, does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools.”

21. Everson v. Board of Education (1947)
“Of course, cutting off church schools from these services, so separate and so indisputably marked off from the religious function, would make it far more difficult for the schools to operate. But such is obviously not the purpose of the First Amendment. That Amendment requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions, than it is to favor them.”

22. “Leaky Wall”

23. Everson v. Board of Education
I wish the Court had said:
“The establishment clause has created a wall of separation between church and state. This wall is not absolute; certain limited types of government interaction with religion are permissible. New Jersey’s plan to transport children to and from parochial schools is one such example of a permissible interaction – because it is a neutral activity and a form of general benefits legislation.”
“Leaky” wall of separation

24. Everson v. Board of Education
What did Everson DO as opposed to what did Everson SAY ?

25. Everson v. Board of Education
In practical sense – when can government “interact” with religion ?
Can provide aid to religious schools…
When the aid is “similar” to providing police, fire protection and other community goods.

26. Everson v. Board of Education
Can (government) firefighters put out a church school fire?
EVERYONE would say “YES”
Can government bus kids to church schools?
Can government provide textbooks to church schools?
Can government provide school lunches to church schools?
Can government provide computers to church schools?
Can government provide vouchers to parents who may choose to send their children to religious schools?

27. Everson v. Board of Education
This process “evolved” into the secular aid theory; government can aid religious schools if the aid centers on secular materials or activities.
The Lemon test

28. Lemon v. Kurtzman (1971)
Pennsylvania and Rhode Island had similar programs involving state governments providing “supplemental salaries” to teachers of secular subjects in Catholic schools
Both states included various provisions to try to ensure that the government aid did not contribute to religious instruction
Question: did these programs go “too far” and thus violate the establishment clause?
Supreme Court (8-0) invalidated both programs; created the “Lemon test” standard
The Lemon test

29. Lemon v. Kurtzman (1971) Aid was permissible if the program:
1) Had a secular purpose
2) Primary effect neither advanced nor inhibited religion
Did not create an “excessive entanglement” of government and religion
The Lemon test

30. Lemon v. Kurtzman (1971)
Laws of both states created an “excessive entanglement” through extensive oversight and injecting parochial aid supporters/opponents into the legislative/budgeting process
Ruling established a “Catch-22” scenario for such programs (tough oversight to ensure secular actions leads to “excessive entanglement”)
The Lemon test

31. Lemon v. Kurtzman (1971)
Lemon test created a workable (if somewhat flawed) approach toward solving government aid to religious school questions Lemon test was quickly criticized for the “seemingly absurd” results it sometimes delivered
The Lemon test

32. “Crazy” Lemon rulings
Government could provide: textbooks in secular subjects, standardized tests, diagnostic speech and hearing tests, school lunches, sign language for deaf child Government could NOT provide: maps and other materials in secular subjects, teacher-prepared tests, guidance counseling services, building repair, transportation to/from field trips

33. New Lemon Test (1990s and Beyond)
Aid was permissible if the program:
1) Had a secular purpose
2) Primary effect neither advanced nor inhibited religion
Did not create an “excessive entanglement” of government and religion
The Lemon test

34. Post-Lemon?
More conservative Supreme Court begins to undo the Lemon test
Allow more government aid to religious schools as long as aid benefits secular activities
Couple of cases in 2000s where Supreme Court seemed to be leaning toward allowing all kinds of government aid to religious schools (vouchers)
Has not been a significant case since 2002
Quite a “leaky wall” regarding government aid to religious schools in last twenty years

35. The End