Establishment Clause Flashcards
Zelman v. Simmons-Harris: Cleveland voucher program that provided financial assistance to families that helped children attend any school. Many were religious schools
Majority (Rehnquist): aid when to families who could choose the school (religious or nonreligious) → neutral regarding religion → constitutional
Thomas Concurrence: The importance of school choice as an effort to realize the promise of Brown. It would be a tragic irony to convert the 14th amendments guarantee of individual liberty into a prohibition on the exercise of individual choice
Souter Dissent: Public tax money will be paying for these kids to learn religious topics that are also taught at these schools. Everson held that no tax money can be levied to support any religious institution in whatever form they may adopt to teach religion. The fact that 96.6% went to religious schools suggest that there wasn’t much choice due to lack of availability of non religious schools.
Breyer Dissent: publicly financed voucher programs pose a risk in terms of religiously based social conflict - the program insists that the religious schools accept all students but what about groups that the religion forbids them to do so? - icky situation. How would we adjudicate such claims?
Kennedy v. Bremerton: Coach kneels and prays at the 50 yard line. School district fires him because that is a violation of the establishment clause
Note: Dissenters and Majority seem to be working on different facts. Dissenters note facts that do suggest coercion. Majority never mentions those facts and instead describe it as a “private quiet prayer” that happened “while his students were otherwise occupied”
Majority (Gorsuch): The Establishment clause must be evaluated by reference to historical practices and understandings, which means; cant make a religious observance compulsory, cannot coerce or force engagement in religious exercise.
Thomas concurrence: Court should have decided two more key issues about public employees rights under free exercise and what burden a government employer has to justify restricting an employee’s religious expression
Alito Concurrence: Court should have decided what standard applies to such expression under the Free Speech Clause
Sotomayor Dissent: The prayer was not private and quiet. They were demonstrative prayers on the 50 yard line and he consistently invited others to join his prayers and for years led the students in prayer. - Leading to the argument that yes it was coercive. The court also ignored the fact that Kennedy was disrupting school programming and violating school policy regarding public access to the field - the reasons why he was suspended.
Overruling Lemon is a mistake, plus the Court provides a toothless version of the coercion analysis - failed to acknowledge the unique pressures face by students when participating in school activities (authority figure who tells you when you play asks you to pray, you pray)
Edwards v Aguillard: The Creationism Act that forbids teaching evolution unless it is accompanied by instruction of creation science. Schools are not required to teach either. Parent sued
Key takeaway: If the primary purpose of a legislative act is to endorse a particular religious doctrine, the Act violates the Establishment Clause
Held (Brennan): Yes, because it has the underlying purpose of promoting a particular religious purpose.
Lemon test:
Purpose: here there is no clear secular purpose→it was to advance a religious viewpoint
teaching creation science with evolution does not advance academic freedom
Also the goal of fairness is not furthered because of its discriminatory preference for creation science or evolution, and it really is only there to make sure to place doubt on evolution science if evolution is even taught
The legislature who sponsored the bill even said he hated evolution because of his religion
Endorsement of a religion is a violation of the Est. clause
Concurrence (Powell) Emphasizes that state and local officials still have broad discretion in school curriculum; religious purpose alone is not enough to invalidate a state legislature→it must predominate; here it was the reason for the Act’s existence
Dissent (Scalia) Totes unfair to say that the Act is created without any secular purpose (there are only 2 ways earth could have been created duh and other stuff) and that secular purpose is explicitly written in its language “protecting academic freedom”
Secular purpose should not be rendered impermissible simply because its pursuit is prompted by concern for religious sensitivities
Figuring out subjective purpose test (Lemon) is almost impossible
Also what motivates one legislator might not motivate another; doesn’t really make sense to invalidate a whole act if only one or few had improper motive
Abandon Lemon’s purpose test
Van Orden v. Perry: The Texas State Capitol has a bunch of monuments and markers. At issue here is the one that is 6 feet high and 3 feet wide located between the capitol and the supreme court and contains texts of the Ten commandments
Held: Texas’s display of the monument does not violate the Establishment Clause
Renquist majority:
The lemon test is not useful for this kind of issue, instead we look to the nature of the monument and the history of our nation
In the Supreme Court building itself there are representations of the ten commandments adorning the metal gates on the sides of the courtroom and the leading into it. Moses himself sits on the exterior facade of the building holding the ten commandments.
The Ten Commandments are of course religious but they also have a historical meaning. Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause
But there are limits. Precedent: Stone: Held Unconstitutional to have a statute requiring the Ten commandments to be posted in every public school room. But that holden does not extend to a legislative chamber. The monument at issue is much more passive than that in Stone.
Scalia Concurrence: There is nothing unconstitutional in a State’s favoring religion generally, honoring God through public prayer and acknowledgement or in a nonproselytizing manner, venerating the 10 commandments.
Thomas Concurrence: We should return to the original meaning of the clause which resists incorporation and does not apply to the states. But if it does incorporate, still the framers understood the establishment to involve actual legal coercion. The monument does not compel the petitioner to do anything. He’s just offended but he doesn’t have to stop to look at it.
Breyer Concurrence: The text cannot be viewed in isolation, but the total context of the display must be considered. The display of the monument amongst other monuments with historical significance suggests the purpose of the Texas legislature in accepting the monument was to stress the historical character of the text, rather than its religious connotations. Although the purpose of the monument is likely mixed and included both religious and secular themes, the overarching purpose is likely non-religious and thus the monument does not violate the Establishment Clause of the First Amendment.
Stevens Dissent: The Ten Commandments monument is not a work of art and does not refer to any event in the state’s history. The display has no purported connection to the formation of Texas or the forming of the United States. . The First Amendment’s command that “Congress shall make no law respecting an establishment of religion” is the governing principle in this case.
O’ Connor Dissent: Girl doesn’t say anything other than I agree with Souter so idk why she didn’t just join that but whatever.
Souter Dissent: The Establishment Clause requires government neutrality as a general rule and thus condemns employing religion as an influence over civil policy. The display of one version of the Ten Commandments, an inherently religious text, on property owned by the state of Texas cannot be viewed as a neutral action by the state in any way, shape, or form. A passerby encountering the Ten Commandments monument will inevitably consider it in isolation and gather from it a purely religious significance. This is impermissible under the Establishment Clause of the First Amendment.
American Legion v. American Humanist Association: Cross on public land as a memorial for fallen soldiers in 1918 that bears the names of local soldiers killed. 89 years later AHA claimed presence on public land violated the Establishment clause.
Issue: Whether there is presumption of constitutionality under the Establishment clause applied to longstanding memorials with historically secular purposes and traditions, but uses a religious symbol.
Held: Yes, look to history and tradition.
Court Reasoning:
Lemon test for religious symbols that are commemorative or for ceremonial purposes is not fitting
Different when it is an established symbol vs a new one→over time the meaning for the symbol in this context changes and the reason to maintain it may evolve too
Crosses had a secular meaning because of the WWI memorials that had lines of crosses for soldiers who sacrificed themselves for the country
Removing it would not be viewed neutrally because it is a familiar feature with historical significance → would be seen as hostility towards the religion
Passage of time creates a strong presumption that the monument is constitutional.
Concurrence (Gorsuch): Offense alone is not enough to be an injury→no standing
Concurrence (Kagan): No lemon test but should be a case-by-case analysis.
Concurrence (Kavanaugh): No more Lemon test→history and tradition is fine but emphasize all citizens equally American no matter the religion in response to the Jewish amicus.
Concurrence (Breyer): No single test for Establishment Clause, instead consider the basic purposes of the Religion clauses
Dissent (Ginsburg): The use of a religious symbol for a war memorial does not make it secular; cross promotes Christianity over other religions
