The Establishment Clause

Question 1

Three Theories of Establishment Clause

Answer 1

Strict Separation: There should be a wall between church and state. Gov and religion as far away from each other as possible

Neutrality: The government must remain neutral on matters of religion. It cannot favor religion over secularism or one religion over another.

Accomodation: The gov violates the establishment clause only if it establishes a church or coerces religious participation

Question 2

General Rule:

Answer 2

Whether a religious display violates the Establishment Clause requires taking into effect the surrounding context with reference to historical practices and understanding. (County of Allegheny). Religious coercion by the government is not permissible. No clear test on coercion (Kennedy).

Question 3

County of Allegheny v. ACLU

Answer 3

In County of Allegheny, a nativity scene and a menorah and christmas tree placed on the staircase of a county courthouse are challenged for violating the establishment clause. The Court held that the Nativity scene violates the Establishment Clause, and the menorah/xmas tree display were constitutionally valid. The Court looks at the display in context and whether a reasonable person would consider the display an endorsement or whether a reasonable non follower would perceive the display as a disapproval.

Question 4

[OLD] Lemon Test

Answer 4

When a law is generally applicable and neutral but favors or disfavors religion, in order to survive an Establishment Clause challenge:
(1) the statute must have a secular legislative purpose;
(2) the principle or primary effect of the statute must be that it neither advances nor inhibits religion; and
(3) the statute must not foster an excessive government entanglement with religion.

Question 5

[OLD] Agostini Test

Answer 5

Agostini Test: Courts consider whether a law:
(1) has a secular purpose,
(2) has the primary effect of advancing religion
On prong (2), the Court considers:
(a) Whether it results in government indoctrination
(b) whether it defines its participants according to religion
(c ) whether there is excessive government entanglement with religion

Question 6

If School Prayer

Answer 6

Under Kennedy, the Lemon Test is overruled. Cours should instead look to whether the specific government practice would have violated the Establishment Clause historically. Historically, religious coercion by the government constitutes an impermissible endorsement. We do not have a clear definition of what constitutes coercion. The standard for coercion can range from more subtle or psychological coercion (like in Lee or Vitale), to literal coercion with government mandated consequences (like Scalia usually mentions) . From Kennedy, we know that silent religious prayer after a football game, when the public official has not invited students to participate, does not constitute religious coercion.

Question 7

Engel v. Vitale→School prayer requirement is unconstitutional

Answer 7

Facts: NY state educational agency recommends starting each day with non-denominational school prayer. A school board in Long Island adopts the recommendation and mandates that principals lead the school in this prayer each morning.

Holding: School prayer requirement is unconstitutional.

Question 8

Lee v. Weisman→prayer is not permissible at graduations

Answer 8

Facts: A public school principal invites a rabbit to give a non-denominational prayer at a middle school in Providence, RI. One of the students at graduation argues that this graduation prayer violates the First Amendment.

Holding: The prayer is not permissible. Prayers at public school graduations violate the First Amendment

Question 9

Santa Fe Independent School District v. Doe→Prayer is impermissible

Answer 9

Facts: An elected “student chaplain” gives a nonsectarian nonproselytizing prayer over the school’s public announcement system before every home football game. Two students at the school argue the prayer violates the Establishment Clause.

Holding: The prayer is impermissible. Non Denominational prayer at the start of a school sporting event violates the Establishment Clause.

Question 10

If Prayer in a Legislative Setting

Answer 10

General Rule: The court must consider the challenged government practice with reference to historical practice and understandings, which includes whether there was any government coercion.

Question 11

Town of Greece v. Galloway → Town Board’s prayer practice constitutional

Answer 11

Facts: The town of Greece holds a town board meeting every month. It invites a different chaplain each month to begin the proceedings with a prayer. From 1999-2007, every chaplain invited was Chrisitan. After two town residents complained, the board invited members of the Bahai and Jewish faiths to give a prayer and when a member of the Wiccan religions asked to give a prayer, they permitted her to do so. Two town citizens challenge the practice on First Amendment grounds.

Holding: The Establishment Clause does not require legislative prayer to be nonsectarian. There is a long historical tradition in the US of delivering sectarian prayers before legislative sessions.

Question 12

Marsh v. Chambers

Answer 12

Nebraska legislature opening with prayer led my chaplain paid for by public funds is constitutional since founders did it, first congress opened with prayer, so under historical practices this is okay

Question 13

If Gov Aid to Religious Schools→

Answer 13

Under the Establishment Clause, tuition assistance to religious institutions is permitted so long as it is dispensed neutrally and allows for independent choice by parents. (Zelman, Helms).

Question 14

Mitchell v. Helms→ Gov aid is permissible

Answer 14

Facts: Federal law provides aid to schools for instructional and educational materials including computer software, reference materials and so on. The material provided to schools must be “secular, neutral, and non-ideological”. The law gets challenged on First Amendment grounds.
Holding: Court applies Agostini test. In doing so, it suggests that when considering whether government aid to a religious institution is permissible, the courts should consider: (1) Whether the aid is available to all students, those enrolled in both religious and secular schools and (2) whether the aid is awarded in a way that empowers private individuals to make independent choices about their children’s schooling. The court seems to abandon the requirement that the aid must not be easily diverted for religious instruction or religious purposes.

Question 15

Zelman v. Simons-Harris → Program is constitutional

Answer 15

Facts: Cleveland’s schools are underperforming compared to the rest of the state. The state introduces a school voucher program that permits parents to pull students from the public school and enroll them in a different public or nonpublic school. The state then compensates parents for the tuition costs, up to a point. 80 percent of the participating non-public schools are religiously affiliated, and 96 percent of participating students chose to enroll in a school with a religious affiliation. The program is challenged on first amendment grounds.
Holding: Tuition assistance programs are constitutional so long as they are (i) Neutral with respect to religion, and (ii) provide the parents with a genuine and independent private choice

Question 16

If Denial of Funding to Religious Entities (Often FE challenges) →

Answer 16

Under the Free Exercise Clause, if the government provides a benefit to secular educational institutions, it is required to provide a benefit to secular educational institutions, it is required to provide that same benefit to religious educational institutions or provide a compelling justification. The desire to provide greater separation between church and state is never a compelling justification. (Makin)

Question 17

Carson v. Makin→the nonsectarian requirement is impermissible

Answer 17

Facts: Maine allows children in school districts without a high school to receive a tuition benefit that allows them to enroll in another public or private high school, so long as the school is “nonsectarian”. Two families challenge this restriction on First Amendment grounds.
Holding: The free exercise clause protects against indirect coercion or penalties on the free exercise of religion. If a school is going to offer a benefit to non religious schools, it must offer that same benefit to religious schools or offer a compelling justification not to do so. And Maine’s desire to create a greater separation between Church and state than the Establishment CLause requires is not a compelling government interest.

Question 18

Locke v. Davey

Answer 18

No constitutional violation for preventing students from using scholarship money to pursue theology degrees

Question 19

Trinity Lutheran v. Comer

Answer 19

denial of grant program to a religious school to resurface the playground is unconstitutional.

Question 20

Espinoza v. Montana

Answer 20

Once a state decides to subsidize private education, the state may not disqualify some private schools solely because they are religious. Scholarship money usage / availability based on whether the school is a religious school is indirect government coercion. If its already/otherwise available, can’t take it away.

Question 21

If Religious Symbols in Public Places →

Answer 21

There is a presumption of constitutionality for long standing religious symbols and monuments (American Legion).

Question 22

American Legion v. American Humanist Association → Monument IS constitutional

Answer 22

Facts: The Bladensburg Peace Cross is a 39 foot cross on public land in Maryland. It was constructed in 1925 to honor those who died in WWI, and it is now managed by a state commission. The American Humanist Association argues the memorial violates the Establishment Clause.

Holding: Monument is constitutional. The Lemon test is OVERRULED for Establishment Clause challenges. Involving religious symbols and monuments. Instead, there is a presumption of constitutionality for long standing religious symbols.

Question 23

Van Orden v. Perry → Monument is Constitutionally Permissible

Answer 23

Facts: The grounds of the Texas Capitol contain a monument of the 10 Commandments donated by a private group. Someone who routinely walks by the monument challenges it as an Establishment Clause violation.

Holding: Religious themed monuments on public grounds must be considered in context. When they convey a historic or secular moral meaning, they are less likely to violate the Establishment Clause

Question 24

McCreary County v. American Civil Liberties Union of Kentucky → Displays violate the Constitution

Answer 24

Facts: Two countries in KY post the 10 commandments in the hallways of their county courtrooms. These displays get challenged as a violation of the Establishment Clause.

Holding: The displays violate the Constitution since they were not motivated by a secular purpose and therefore fail the first prong of the Lemon test. Religious and secular themes must be integrated and treated neutrally for the religious display to survive.

Question 25

Pleasant Grove City, Utah v. Summum (2009) → City may exclude monument from city park

Answer 25

Facts: A government park in Salt Lake City features a monument of the Ten Commandments. Representatives from the Summum religion ask to donate a monument featuring the “Seven Aphorisms of Summum”. The government declines. This denial is challenged on First Amendment grounds.

Holding/Rule: Monument can be excluded from the park. When the government speaks for itself, speech clause restrictions don’t apply. (But Establishment Clause violations do)