CASES: Establishment Clause

Question 1

Everson v. Board of Education (1947)

Answer 1

Public School Bus and Establishment Clause

Black – While the First Amendment requires states to remain neutral in their treatment of religious institutions, it also requires states not to show hostility towards religion in a manner that interferes with the free exercise of religion by the state’s citizens.

Thus, the state may not refuse to include religious institutions in general subsidy programs as this could interfere with the free exercise of religion.

Question 2

Engel v. Vitale (1962)

Answer 2

School Prayer and Establishment Clause

Black – Under the Establishment Clause of the First Amendment, state officials may not compel an official state prayer, even if the prayer is denominationally neutral and students have the option of remaining silent or being excused.

Question 3

Lemon v. Kurtzman (1971)

Answer 3

Textbooks for Religious Schools and Establishment Clause

Burger – State aid to religious entities must comply with a three-part test, or else it violates the Establishment Clause:
(1) must have a secular legislative purpose,
(2) must not have the primary effect of either advancing or inhibiting religion
(3) must not result in excessive government involvement with religion

Direct state funding of religious-school teachers’ salaries and instructional materials results in excessive government entanglement in religion and violates the Establishment Clause.

Question 4

Marsh v. Chambers (1983)

Answer 4

Legislative Prayer and Establishment Clause

Burger (6-3) – Legislative prayer does not violate the Establishment Clause because the First Congress, which finalized the language of the First Amendment, specifically provided for it.

Question 5

Good News Club v. Milford Central School (2001)

Answer 5

After-school Religious Student Org and Establishment Clause

Thomas (6-3) – Speech discussing otherwise permissible subjects cannot be excluded from a limited public forum, such as a public school, on the ground that the subject is discussed from a religious viewpoint.

Question 6

Zelman v. Simmons-Harris (2002)

Answer 6

Tuition Aid to Religious Schools and Establishment Clause

Rehnquist (5-4) – Under the Establishment Clause, a state may enact an educational program that provides indirect financial assistance to religious schools if the program truly provides individuals the opportunity to choose, even if the selection is predominately filled with private schools with religious affiliations.

While direct government aid to religious schools is often unconstitutional, “private choice” programs have consistently been upheld as constitutional. Thus, when a neutral government aid flows to religious institutions only because of a truly private, independent choice of an individual, there is no Establishment Clause violation.

Question 7

Town of Greece v. Galloway (2014)

Answer 7

Board Meeting Prayer and Establishment Clause

Kennedy (5-4) – The Establishment Clause must be interpreted according to historical practices and understandings with respect to prayer at government gatherings. Benign prayer at government gatherings has been an accepted practice since the Constitution was drafted.

Also, while a government cannot coerce citizens to participate in any religion, there is no evidence that the town coerced its residents into attending town meetings to participate in the prayer.

Question 8

American Legion v. American Humanist (2019)

Answer 8

Cross Memorial on Public Land and Establishment Clause

Alito (7-2) – A presumption of constitutionality applies under the Establishment Clause to longstanding memorials with historically secular purposes and traditions, even if such a memorial uses a religious symbol on public land.

Question 9

Trinity Lutheran Church v. Comer (2017)

Answer 9

Church Playground and Establishment Clause

Roberts (7-2) – Disqualifying entities from receiving public benefits solely because of their religious character expressly discriminates on the basis of religion, triggering strict scrutiny.

Denying a grant solely because the church is a religious entity effectively forces it to choose between receiving public benefits and remaining a religious institution. That means the policy expressly discriminates against churches because of their religious status, not because of what the church will do with the funds.