The Establishment Clause Flashcards
Text of the Establishment Clause
“Congress shall make no law respecting an establishment of religion.” Possibly intended to mean that the feds would not respect any particular state’s establishment of religion. This would render incorporation against the states pointless. No one on the court subscribes to this view.
Basics of the Establishment Clause
Analysis Priority Today:
1) History
2) Coercion
3) Endorsement
4) (maybe) Lemon
A government actor cannot pay for, endorse, or otherwise “establish” any particular religion. It has been incorporated and now applies to both the feds and the states. Avoid coercion forcing people to subscribe to a particular religion (like when colonies fined people for not going to church).
What principle enables the gov to pay for a religious school despite the Establishment Clause?
Parent choice. Although SCOTUS opposes any tax levied to support a religious institution, it’s fine if the money is routed through private choice. This remains true even if the gov knows a parent will take that money to a religious school.
Lemon v. Kurtzman and the Lemon Test
Facts: States were paying salaries of the teachers of secular subjects like math even in private religious schools.
3-Part Element “And” Test. 1) Is the primary purpose of the law secular? 2) Does the main effect of the law either advance or inhibit religion? 3) Does the law promote excessive entanglement? If the gov action breaks any of these 3, it is unconstitutional under the Establishment Clause.
Holding: Direct state funding of religious schoolteachers’ salaries was excessive entanglement that violated the Establishment clause.
O’Connor’s Modified Lemon Test - The Reasonable Observer Test
1) What would a reasonable observer conclude is the purpose of this law? Secular or religious?
2) What would a reasonable observer conclude is the primary effect of this law? To advance/inhibit religion or not?
Modified Lemon Test - Endorsement Theory
1) Would a reasonable person conclude that the purpose of the law is to endorse religion?
2) Would a reasonable person conclude the effect of this law is to endorse religion?
Policy Angle: The whole point of the Establishment Clause is to prevent gov endorsement of a religion.
Nativity Scene Hypo
If Iowa City puts up a nativity scene around Christmas, there is an Establishment problem. But it can be mitigated by putting up other stuff representing other religions - kind of diluting the potential “endorsement” via diversification. That makes it harder for a reasonable person to believe that display is an endorsement.
Government Funds & Establishment Issues - Zelman v. Simmons-Harris Test
Private Choice is a critical factor in determining if state funds that could support religious institutions is an establishment clause issue.
Test – it makes clear that where a government aid program is neutral with respect to religion and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause. If it is an extreme case, it will almost always cure!
Reasonable Observer Test – what would a reasonable observer conclude is the purpose and primary effect of the law?
Endorsement Theory – would a reasonable observer conclude that the purpose, and effect of the law is to endorse religion?
Rationale:
Meant to protect from governmental endorsement of religion.
Lee v. Weisman
Facts: Jewish rabbi came to pray at high school, gave a prayer that was not particularly sectarian.
Majority (Kennedy) = This is unconstitutional because we NEED COERCION and PEER PRESSURE COUNTS.
Concurrence (Liberals) = This is unconstitutional because there is ENDORSEMENT and that is a violation. COERCION IS NOT NECESSARY.
Dissent (Conservatives) = MUST have COERCION, and it has to be HARD COERCION with LEGAL PUNISHMENT and NOT JUST PEER PRESSURE. This is a narrow reading.
Student Chaplain Case
Facts: Student body voted on who the student chaplain would be. If the student body chose someone who would pray, that was fine under the law. Some prayer givers did that.
Holding: Following Lee v. Weisman, this is unconstitutional because of the PEER PRESSURE COERCION. The same Lee v. Weisman majority said these students’ participation was mandatory (like the football players).
Town of Greece v. Galloway
Facts: A town council prayed at the beginning of each meeting but they let anyone who wanted to sign up do it. Mostly Christian ministers but sometimes Satanists would troll.
Holding: Court says it’s fine, it’s constitutional because these aren’t kids, they’re adults, and there was no coercion or endorsement. They relied on Marsh v. Nebraska.
Marsh v. Nebraska
Facts: Nebraska had practice of legislative body hiring a chaplain to start meetings with prayer.
Holding: Court looks to HISTORY and says we have a long history of allowing legislative prayer, so it’s allowed.
Kennedy v. Bremerton (2022)
Facts: Football coach prays at midfield after games. Sometimes silently, sometimes players would join him. Gets controversial and becomes a whole media kerfuffle.
Holding: Court looks to HISTORY and says it’s fine. The Court returns to Town of Greece and its reliance on Marsh v. Nebraska. When there is a long historical practice of allowing it, it’s fine. No one was being coerced here, if players wanted to join they could. Peer pressure not found/cared about by Court.
Because this is the most recent, and the court EXPLICITLY killed Lemon, it’s even less likely that it would come up again. But it’s still a ghoul.
Establishment Endorsement Connection to Speech Definition
The endorsement inquiry is about the message attempted to be communicated.
Meanwhile, the Texas v. Johnson test for what is speech describes it as 1) intent to convey a particularized message and 2) likelihood of being understood.
The modern Endorsement theory includes the reasonable observer language. These justices ask if a REASONABLE OBSERVER would PERCEIVE the thing as ENDORSEMENT. Context matters.
McCreary Case
Same day as Van Orden, court had another 10 commandments case in Kentucky where Kentucky kept trying to put the 10 commandments alone and by the time they got to the 3rd version, it was more like the mixed nativity scene, but the court still said it’s unconstitutional because the purpose, under #1 of the Lemon test, was to get the 10 commandments in there.
So if a court applies the Lemon test, they may forbid the 10 commandments even if conservative justices using history would basically never do that.
