Chapter 4 (Bennett) Flashcards
Establishment Clause
Congress shall make no law respecting an establishment of religion.
Accommodationist vs. Separationists
Accommodationist:
- Narrow definition of the establishment clause
- Accommodates partiality towards a certain religion so long as it doesn’t establish a PARTICULAR religion
Separationist:
- “Wall of separation between church and state”
- Broad definition of the establishment clause
Everson v. Board of Education (1947)
Details: A taxpayer in the school district challenged the district’s plan to reimburse parents for the costs of transporting students to religious schools, saying the plan violated the federal Establishment Clause (would be newly incorporated!). State court agreed, but appellate court reversed. Court ruled 5-4 upholding plan, finding that the reimbursements were so far separated from religious activity that they didn’t violate First Amendment.
Black: History shows need for Establishment Clause; Madison’s Remonstrance clarifies this. Since 1940, Court applied Free Exercise Clause to the states; Establishment Clause should be no different. EC means several things, all of which support Jefferson’s “wall of separation” argument. NJ’s law, though, doesn’t violate these laws. And by striking it down, courts are inadvertently prohibiting NJ from extending its benefits to all citizens without regard to religion. EC requires neutral, not adversarial, relationship with religion.
Jackson, dissenting: We’re effectively saying taxes can go to “reward piety,” which should be problematic. The fact that the state says the reimbursement is “public” doesn’t diminish the problem.
Rutledge, dissenting: State cannot mandate religious attendance, administer tests, and so on. Only question remaining is whether state can use tax power to support religion. NJ’s law clearly does this, no matter how you slice it. And it shouldn’t, given the danger of such a precedent alluded to by Madison and Jefferson; religious liberty
should be free from sustenance from the state, in order to be truly free. The state is not being adversarial; it is being actively neutral by denying funding to support any kind of religious activity.
Engle v. Vitale (1962)
Details: Engle and many parents sued a NY school district for requiring a nondenominational prayer for students. State courts upheld; Court
ruled 6-1 to strike down the prayer, saying that the prayer (bland as it is) is clearly a religious activity.
Black: Prayer “breaches the wall of separation.” These kinds of prayers are the precise thing the Framers were trying to avoid, given the history of religious prayer in England. The prayer clearly promotes religion, and thus violates the EC. Some argue that prohibiting states from adopting prayer is aggressive toward religion, but in reality, the law simply keeps prayer in the hands of the people.
Additionally, the fact that the prayer is vague is not a sufficient defense; it still references particular religions where “Almighty God” is recognized. Also, giving students the option to leave puts the burden on the students.
Stewart, dissenting: Saying such a prayer does not establish religion, nor do government institutions beginning sessions with similar prayers. Simple as that.
Thoughts? Is there something special about kids that the state should protect concerning religion? Are these examples of prayer similar or different?
Lemon v. Kurtzman (1971)
Details: Laws in PA and RI provided direct and indirect support for private schools, some of which were religious. RI law: supplementing the salaries of private school teachers, provided they don’t teach religious subjects and provided they only teach subjects offered in public schools. PA law: reimburses private schools for teachers’ salaries, textbooks, and the like, provided that reimbursements are only for secular activities. Program spent $5 million annually on reimbursements to almost 1,200 schools enrolling over 20% of the state’s students. 96% of these reimbursements went to religious schools, mostly Catholic. Citizens sued to recover taxes supporting this activity. Court unanimously holds both laws as unconstitutional violations of Establishment Clause, establishing a test to measure such violations.
Burger: Though language in First Amendment is opaque, government cannot pass law respecting an establishment (broader than simply founding state church). Every analysis must begin with Lemon Test, which states in three prongs:
- Action must have secular purpose/intent
- Action must not have primary effect of advancing/inhibiting religion
- Action must not result in “excessive entanglement” with religion (any prongs violated = unconstitutional)
Legislative purpose = fine; states didn’t want to benefit religion, only improve quality of secular education in ALL schools.
Also, total separation is impossible; interaction between state/religion is inevitable. BUT, there is excessive entanglement (laws struck down).
Douglas, dissenting: Even with this test, the outcome is the same - taxpayers are being forced to subsidize an aspect of private, religious education.
Counterpoint: where would Douglas draw the line? Pell Grants? Tax-exemptions? Or, because they apply everywhere, are they okay?
Zelman v. Simmons-Harris (2002)
Details: Ohio legislature enacted program to address failing Cleveland schools, giving parents $2250 to send their kids to schools (public or private) outside the district. Most money went to private religious schools, so taxpayers challenged the law as unconstitutional. District and appellate court agreed, but SCOTUS reversed 5-4, ruling this was a program of private choice.
Rehnquist: Since the program allows for the “true private choice” of parents, and since it is available to broad population, Establishment Clause challenge falls. It doesn’t matter that most money goes to religious schools; it’s about choice, not results or outcome.
Thomas, concurring: Racial argument — inner city failing schools fail minority students; the program should be applauded as offering a way out to students.
- Invokes Douglass, Brown v. Board
- Using EC to deny education advancement to minority students is wrong
Stevens, dissenting: Three things: 1) educational crisis in Cleveland doesn’t affect, constitutionality; 2) it absolutely does matter that students reject public schools for religious education at state expense; and 3) a family wanting parochial education is not entitled to such education at state expense.
Breyer, dissenting: Parental choice does not help the taxpayer who is dismayed that their taxes are funding religious education.
Establishment concerns don’t go away with parental choice.
Souter, dissenting: Court overturns Everson by allowing for state aid to be used directly for religious education.
- Private choice understanding is not what the Court has in mind in this case
- Is there choice when no secular private schools exist, for example?
Town of Greece v. Galloway (2014)
Details: Greece, NY had a policy of opening city council meetings with prayer from members of the community. Two women who regularly attended claimed that this policy violated the First Amendment inasmuch as the policy was skewed toward Christian clergy.
- Not mentioned in O’Brien: after receiving complaints from town members about the policy, Greece more seriously solicited participants to provide the opening prayers (including non-Christian people from the community)
- Why so many Christians? Consider the demographics of the town.
Reasoning: Kennedy, for 5-4 majority, acknowledges that legislative prayer is permissible, but what about prayer of this kind? Nonsectarian or ecumenical prayer is not required by the Marsh precedent; in fact, requiring this would require more government involvement in religion, as opposed to simply staying out of it. There is no coercion involved here.
Other opinions: Alito, concurring, says that generic prayer (of the kind called for by the dissent) has not ever been required in the legislative setting, so why here? Also, legislative prayer has a long history in our country, so the respondents’ arguments don’t jive with history.
- Thomas, concurring, argues that the Establishment Clause is narrow in what it prohibits, and it certainly doesn’t prohibit prayer of this nature.
- Breyer, dissenting, says this is a fact-sensitive case, meaning that the details matter a great deal in determining the constitutional application. With this in mind, CA2 was within its boundaries when it rejected this specific application of legislative prayer, given the details and facts involved.
- Kagan, dissenting, was troubled by the Town’s lack of commitment to
religious diversity. Marsh shouldn’t apply because here, townspeople were implicated and implicated in a way that promoted one tradition.
Significance: A major victory for the accommodationist perspective re- Establishment Clause jurisprudence.
Questions…
- To what extent does Establishment Clause privilege irreligion over religion? Is that a problem?
- Moving forward, Court seems to be sympathetic to argument that
recognizing Judeo-Christian roots of country does not equal EC violation. Is that a problem?
Van Orden v. Perry (2005)
Details: In 1960s Fraternal Order of Eagles donated monument to Texas, which placed it on public grounds surrounding State Capital. Van Orden sued because he was offended, and said it violated Establishment Clause. Federal courts disagreed, saying the monument was part of a larger display and therefore secular/historical. SCOTUS agreed, ruling that since the monument was donated and is not coercive to anyone, it’s okay.
Rehnquist: Lemon Test doesn’t work here; instead, we ought to appeal to history.
- There are many other instances of using the 10 Commandments in conjunction with other figures in similar displays.
- The monument in TX is more passive than the display in Stone, where children were coerced by the display and words every day. This monument does not coerce anybody, is part of a broader display of the political and history of TX, and has not be challenged or commented on once in 40 years (until now).
- Van Orden looking for a fight?
Breyer, concurring: Context matters: “Here the tablets have been used as part of a display that communicates not simply a religious message, but a secular message as well”.
Thomas, concurring: Religion is part of nation’s history; end of story.
Stevens, dissenting: Texas is endorsing Judeo-Christian God. Wall of separation important to maintain.
Carson v. Makin
Similar to Zelman case. Has to do with parents’ choices and religious schools benefiting from funding.
Sherbert v. Verner
Details: Adell Sherbet was a Seventh Day Adventist, whose faith prohibited her from working on Saturdays. When her work moved from a five- to six-day workweek, she was fired for not agreeing to work on Saturday. She eventually filed for unemployment benefits, but was denied because she turned down “suitable work when offered…by the employment office or the employer.” She sued, and two courts sustained the decision that the statute did not violate her Free Exercise rights. SCOTUS 7-2 said that the statute did violate Sherbert’s Free Exercise rights.
Brennan: Two things: first, her Free Exercise rights were burdened by the statute, since by being declared ineligible for benefits she was effectively being forced to choose between employment and subscribing to her faith; and second, the state does not have a compelling interest in upholding the statute to infringe on Sherbet’s Free Exercise rights.
Sherbert Test: IF…
- The person has a claim involving sincere religious belief, AND
- Government action/statute imposes substantial burden
THEN GOVERNMENT MUST PROVE…
- It is acting in furthering a compelling state interest, AND
- It is acting in a least-restrictive manner (least harm to religion)
- Fails first prong here
Harlan, dissenting: Court commands the state to carve out exemptions for those with religious beliefs, benefiting them at the expense of those who simply don’t want to work.
- The fact that Sherbert’s motivations were religious are irrelevant; the law is neutral, and the Court demands the state single out religious folks for preferential treatment.
Compelling Interest standard set the tone for several decades, being strengthened by Yoder. However, this standard was significantly revised with the Smith case.
Employment Division, Dept. of HR of Oregon v. Smith
Details: Two Native Americans were fired from their jobs as drug counselors after taking peyote during religious services. When they were denied unemployment compensation (on the grounds that their termination was on the grounds of “misconduct”), they sued. Oregon Supreme Court ruled that the state’s interest in the compensation fund did not outweigh the men’s Free Exercise rights (Sherbet Test). SCOTUS heard the appeal from Oregon and remanded the case for further consideration. Oregon Supreme Court then ruled that the state constitution did not exempt peyote from its drug laws, but also claimed that the two men were still entitled to their unemployment benefits. Oregon again appealed, and SCOTUS ruled 6-3 for the state, severely limiting the Sherbert Test.
Scalia: Free Exercise means believing and professing any religious doctrine, but also the action and expression of these beliefs. The respondents argue that this expression covers actions that are defined criminal in a neutral fashion, not targeting their religion at all. Court’s previous rulings have never held this.
- How different from Sherbert, then? Sherbet wasn’t engaging in pre-defined criminal activity, for one.
Previous decisions striking down neutral laws have involved hybrid of Free Exercise and other constitutional rights (rights of parents, for example, in Wisconsin v Yoder).
What this case does is effectively say that conduct, otherwise defined as criminal, must be exempted if supported by religion.
Sherbert Test should not be extended to a generally applicable criminal law. To do otherwise makes a man “a law unto himself,” contradicting “constitutional tradition and common sense”.
- Applying “compelling government interest” test here would be a “constitutional anomaly”.
SIMPLY PUT: because they ingested peyote prohibited under Oregon law, and because this prohibition it itself constitutional, Oregon is justified in denying unemployment benefits.
O’Connor, concurring: Agree with ruling, but not with reasoning; she is content with applying Sherbert Test to case, which would have had led to same outcome.
Blackmun, dissenting: Sherbert ought to be applied, but the state fails the compelling interest/least restrictive means test here. And the Native American Church’s stance on peyote actually addresses the state’s concerns, rendering the compelling interest unpersuasive.
- Blackmun’s reference to political context (War on Drugs).
The Smith Test shifted the balance of religious liberty, much to the chagrin of most of the public. As a result, Congress passed RFRA in 1993.
Church of the Lukumi Babalu Aye v. City of Hialeah
Details: Church leased land in Hialeah, where it would establish a church, school, and cultural center, as well as Santeria (which included ritual animal sacrifice). In response, the city council passed ordinances aiming to prohibit the sacrifice, while at the same time making exemptions for certain practices. Church sued, but district and appellate court upheld restrictions.
Holding: SCOTUS unanimously reversed, saying the law unconstitutionally targeted religion; it was not neutrally applied, and therefore violated Free Exercise clause.
Kennedy: A neutral, generally applicable law doesn’t need to be justified by compelling government interest, even if it incidentally burdens a religion. The ordinances here don’t satisfy the neutrality/general applicability requirements of Smith. Ordinances aren’t neutral because they (even inexplicitly) targeted Santeria. Additionally, the city could have addressed public health concerns by regulating disposal of organic waste (animal carcasses); but they chose to ban the act itself. Ordinances aren’t generally applicable because they target religious killing, not all killing of animals; their arguments about public health and animal cruelty don’t consider other ways in which animals can be killed, prepared, and disposed of (hunters and exterminators are exempt, for example). The ordinances, therefore, are motivated by animus toward particular religious practice, and do not withstand the rigorous scrutiny demanded by the First Amendment. The city hasn’t shown that the interests are compelling, so the ordinances are struck down.
Scalia, concurring: Court is mostly right about the law being nonneutral and non generally applicable. But the Court’s attempt to “determine the singular motive of a collective legislative body’ is virtually impossible and ultimately fruitless.
Souter, concurring: Court got it right, but the Smith rule is not germane to this case and ought to be revisited due to its reliance on precedent not fully in agreement with the rule and because the history of the Free Exercise clause was not adequately considered when formulating the rule.
Showed how, even without Sherbert, a person/group could demonstrate how their religious beliefs are being targeted.
City of Boerne v. Flores
Details: Texas Catholic church, built in 1923, wanted to expand. City, though, denied their request for the permits, citing the fact that the church was recently designated a historic landmark by the city’s Historic Landmark Commission. Archbishop sued in federal court, saying the city violated religious freedom established in RFRA, enacted by Congress in light of Oregon v. Smith in an effort to establish via statute the pre-Smith test for balancing religious freedom and governmental interests (less strict rules). District court ruled Congress violated separation of powers in passing RFRA, but appeals court reversed, SCOTUS ruled 6-3 for the city, ruling against Congress’s authority in passing the RFRA.
Kennedy: Smith pointed out a problem with Sherbert test: the ability for people to ignore neutral, generally applicable laws because of religious beliefs. For Congress to, through statutory law, circumvent the Court’s decision in Smith is an unconstitutional violation of 14 Amendment, which states that Congress may enforce provisions of the amendment, not changing the rights the amendment is designed to protect. History shows that is not what the 14 Amendment meant, and in doing so, Congress can unilaterally change what the Constitution means (basically circumventing the role of the Court in the process).
-“It appears, instead, to attempt a substantive change in constitutional protections”.
This case isn’t so much about religious freedom in the details; it’s about Congress’s ability to overrule the Court on a constitutional question.
Stevens, concurring: RFRA violates the Establishment Clause, so it’s unconstitutional.
Scalia, concurring: Appealing to history, he blasts O’Connor’s dissenting opinion further criticizing Smith. He’s defending his opinion in Smith and his historical understanding of Free Exercise.
O’Connor, dissenting: I agree that the case is about Congress’ authority under the 24 Amendment, but we should have taken time to revisit Smith, which was decided erroneously. “We would then be in a position to review RFRA in light of a proper interpretation of the Free Exercise Clause.”
Locke v. Davey
Details: Davey was awarded a Promise Scholarship from Washington state. He enrolled at Northwest College, where he declared a major in pastoral ministries. State pulled the scholarship, saying it would be supporting religious training. Davey sued, arguing Washington violated his Free Exercise and Free Speech rights (viewpoint discrimination, he argued). District court disagreed, but Ninth Circuit reversed, holding the state had singled out religion for improper treatment under a generally applicable scholarship (citing Lukumi). SCOTUS reversed 7-2, ruling that Washington was not compelled to offer funding to Davey (though they could have without violating the Establishment Clause).
Rehnquist: There is room for “play in the joints” of the religion clauses, meaning that some actions permitted by Establishment Clause are not required by Free Exercise Clause. Withholding scholarship funds falls under this category. Further, unlike the action in Lukumi, the mistreatment of religion in this case is “far milder”: no sanctions, and doesn’t force students to choose between beliefs and receiving grant (really?). Students can still attend religious schools with state money, but the state cannot be forced to subsidize religious training at these schools. Indeed, the state has a reasonable and substantial interest in prohibiting such funding (historical denial for state support for clergy, etc).
- Why chaplains in the Army and Congress, then? Because they allow people to exercise their beliefs when away (as required by government service).
Scalia, dissenting: Lukumi should be the guiding precedent here, which involves a decision to discriminate against religion. Washington has created a generally available benefit, and then carved out an exclusion: theology. Davey only wants equal treatment.
- Funding clergy is different than excluding them from generally available funds; the Court is misapplying history here.
- “if the Religion Clauses demand neutrality, we must enforce them, in hard cases as well as easy ones.” State’s interest is completely philosophical, and could have consequences in every other public sector. Statutes on race and gender were not given same historical reading as the statute in Washington. The Court has been willing to come to the aid of other groups, but not religious people (this is troubling).
