consti part 9: the church & the state
Art II sec 6. The separation of Church and State shall
be inviolable.
Art III sec 5. No law shall be made respecting an
establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or
preference, shall forever be allowed. No religious test
shall be required for the exercise of civil or political
rights.
Art VI sec 29(2). No public money or property shall be
appropriated, applied, paid, or employed, directly or
indirectly, for the use, benefit, or support of any sect,
church, denomination, sectarian institution, or system
of religion, or of any priest, preacher, minister, other
religious teacher, or dignitary as such, except when such
priest, preacher, minister, or dignitary is assigned to the
armed forces, or to any penal institution, or government
orphanage or leprosarium.
Religious Freedom:
Establishment Clause
AGLIPAY vs. RUIZ
Justice Laurel
1937
FACTS:
 On May 1936, respondent announced in the
newspapers that he would order of postage
stamps commemorating the 33rd International
Eucharistic Congress under Act No. 4052 (cited
below)
 Petitioner, Mons. Gregorio Aglipay, Supreme
Head of the Phil. Independent Church
(Aglipayan), seeks a writ of prohibition to
prevent respondent Director of Posts from
issuing and selling postage stamps
commemorative of the said Congress.
PRESENT CASE:
o Petitioner alleges that respondent in
issuing and selling the postage stamps
violated the Constitutional provision on
the principle of separation of church
and state, specifically section 13,
subsection 3, Art. VI which says: “No
public money or property shall ever
be appropriated, applied, or used,
directly or indirectly, for the use,
benefit, or support of any sect,
church, denomination… or system of
religion…”
ISSUE: WON respondent violated the Constitution in
issuing and selling the postage stamps.
HELD: No constitutional infraction.
History of Separation of Church and State:
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 “… our history, not to speak of the history of
mankind, has taught us that the union of
church and state is prejudicial to both, for
occasions might arise when the state will use the
church, and the church the state, as a weapon
in the furtherance of their respective ends and
aims.”
 This principle was recognized in the Malolos
Constitution, inserted in the Treaty of Paris, in
the instructions of McKinley to the Phil.
Commission… and finally embodied in the
Constitution as the supreme expression of the
Filipino people.
 Filipino’s enjoy both civil and religious freedom
 guaranteed in the Consti
o What is guaranteed by our Constitution
is religious liberty, not merely religious
toleration.
 Religious Freedom as a constitutional mandate
is not inhibition of profound reverence for
religion and is not a denial of its influence in
human affairs.
o Imploring “the aid of Divine Providence,
in order to establish a gov’t that shall
embody their ideals…” in the preamble
of the Constitution.
 General Concessions indiscriminately accorded
to religious sects:
o Tax exemptions properties devoted
exclusively to religious purposes
o Sectarian aid is not prohibited when a
priest, preacher, etc. is assigned to the
armed forces, penal institution,
orphanage or leprosarium.
o Optional religious instruction in public
schools is allowed by constitutional
mandate, etc.
 Act No. 4052, from which draws authority to
issue and sell the stamps contemplates no
religious purpose, but gives the Director of the
Posts the discretionary power to determine when
the issuance of special postage stamps would be
“advantageous to the Government.”
 The present case was not inspired by any
sectarian feeling to favor a particular religious
denomination.
o The stamps were not issued for the
benefit of the Roman Catholic Church,
nor were money derived from the sale of
the stamps given to the church.
o Purpose of the stamps was “to advertise
the Philippines and attract more tourists
to the country”  officials took
advantage of an internationally
important event to give publicity to the
Philippines and its people.
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consti part 9: the church & the state
 The stamp as actually printed
instead of showing a Catholic
Church chalice as originally
planned, contains a map of the
Philippines and the location of
the City of Manila with the
inscription “Seat XXXIII
International Eucharistic
Congress, Feb. 3-7, 1937.”
• What is emphasized is
not the Congress but
Manila, the capital of
the Philippines, as the
seat of that congress.
o The propaganda resulting from the
issuance and sale of the staff might
redound to the benefit of the Roman
Catholic Church but this was not the
intention and is only incidental to the
original purpose.
 “We are of the opinion that the
Government should not be
embarrassed in its activities
simply because of incidental
results, more or less religious in
character, if the purpose had in
view is one which could
legitimately be undertaken by
appropriate legislation.”
o There may have peen poor judgment in
issuing and selling the stamp but a gap
still exists between that and the
unconstitutionality of the issuance and
sale which was not filled by the
petitioner.
GARCES vs. ESTENZO
FACTS:
1. On March 23, 1976, the said barangay council
adopted Resolution No. 5, "reviving the traditional socio-
religious celebration" every fifth day of April "of the feast
day of Señor San Vicente Ferrer, the patron saint of
Valencia". lt provided for (1) the acquisition of the image
of San Vicente Ferrer and (2) the construction of a
waiting shed as the barangay's projects. Funds for the
two projects would be obtained through the selling of
tickets and cash donations "
2. On March 26, 1976, the barangay council passed
Resolution No. 6 which specified that, in accordance
with the practice in Eastern Leyte, Councilman Tomas
Cabatingan, the Chairman or hermano mayor of the
fiesta, would be the caretaker of the image of San
Vicente Ferrer and that the image would remain in his
residence for one year and until the election of his
successor as chairman of the next feast day. It was
further provided in the resolution that the image would
be made available to the Catholic parish church during
consti 2 all stars
the celebration of the saint's feast day. It was ratified in
a plebiscite.
3. Funds were raised by means of solicitations and cash
donations of the barangay residents and those of the
neighboring places of Valencia. With those funds, the
waiting shed was constructed and the wooden image of
San Vicente Ferrer was acquired in Cebu City by the
barangay council for four hundred pesos
4. On April 5, 1976, the image was temporarily placed in
the altar of the Catholic church of Barangay Valencia so
that the devotees could worship the saint during the
mass for the fiesta. A controversy arose after the mass
when the parish priest, Father Sergio Marilao Osmeña
refused to return that image to the barangay council on
the pretext that it was the property of the church
because church funds were used for its acquisition.
5. Several days after the fiesta or on April 11, 1976, on
the occasion of his sermon during a mass, Father
Osmeña allegedly uttered defamatory remarks against
the barangay captain, Manuel C. Veloso, apparently in
connection with the disputed image. That incident
provoked Veloso to file against Father Osmeña in the city
court of Ormoc City a charge for grave oral defamation.
6. Father Osmeña retaliated by filing administrative
complaints against Veloso with the city mayor's office
and the Department of Local Government and
Community Development on the grounds of immorality,
grave abuse of authority, acts unbecoming a public
official and ignorance of the law.
7. Meanwhile, the image of San Vicente Ferrer remained
in the Catholic church of Valencia. Because Father
Osmeña did not accede to the request of Cabatingan to
have custody of the image and "maliciously ignored" the
council's Resolution No. 6, the council enacted on May
12, 1976 Resolution No. 10, authorizing the hiring of a
lawyer to file a replevin case against Father Osmeña for
the recovery of the image
8. The replevin case was filed in the city court of Ormoc
City against Father Osmeña and Bishop Cipriano Urgel.
After the barangay council had posted a cash bond of
eight hundred pesos, Father Osmeña turned over the
image to the council ln his answer to the complaint for
replevin, he assailed the constitutionality of the said
resolutions.
9. Later, he and three other persons, Andres Garces, a
member of the Aglipayan Church, and two Catholic
laymen, Jesus Edullantes and Nicetas Dagar, filed
against the barangay council and its members (excluding
two members) a complaint in the Court of First Instance
at Ormoc City, praying for the annulment of the said
resolutions (Their main argument was it prejudiced
members of the Catholic Church because they could see
the image in the church only once a year or during the
fiesta. <Labo dud!> )
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consti part 9: the church & the state
10. Lower Court dismissed the complaints.
ISSUES
1) WON that the barangay council was not duly
constituted because lsidoro M. Mañago, Jr., the
chairman of the kabataang barangay, was not
allowed to participate in its sessions? NO
RATIO
In this case, Mañago, the barangay youth chairman, was
notified of the sessions of the barangay council to be
held on March 23 and 26, 1976 but he was not able to
attend those sessions because he was working with a
construction company based at Ipil, Ormoc City.
Mañago's absence from the sessions of the barangay
council did not render the said resolutions void. There
was a quorum when the said resolutions were passed.
2) WON the resolutions contravene the
constitutional provisions that "no law shall be
made respecting an establishment of religion"
and that "no public money or property shall ever
be appropriated, applied, paid, or used, directly
or indirectly, for the use, benefit, or support of
any sect, church, denomination, sectarian
institution, or system of religion, or for the use,
benefit, or support of any priest, preacher,
minister, or other religious teacher or dignitary
as such. except when such priest, preacher,
minister, or dignitary is assigned to the armed
forces, or to any penal institution, or
government orphanage or leprosarium? (haba,
hehe) NO
Ratio
The wooden image was purchased in connection with the
celebration of the barrio fiesta honoring the patron saint,
San Vicente Ferrer, and not for the purpose of favoring
any religion nor interfering with religious matters or the
religious beliefs of the barrio residents. One of the
highlights of the fiesta was the mass. Consequently, the
image of the patron saint had to be placed in the church
when the mass was celebrated.
If there is nothing unconstitutional or illegal in holding a
fiesta and having a patron saint for the barrio, then any
activity intended to facilitate the worship of the patron
saint (such as the acquisition and display of his image)
cannot be branded as illegal.
The barangay council designated a layman as the
custodian of the wooden image in order to forestall any
suspicion that it is favoring the Catholic church. A more
practical reason for that arrangement would be that the
image, if placed in a layman's custody, could easily be
made available to any family desiring to borrow the
image in connection with prayers and novenas.
This case is a petty quarrel over the custody of a saint's
image. lt would never have arisen if the parties had been
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more diplomatic and tactful and if Father Osmeña had
taken the trouble of causing contributions to be solicited
from his own parishioners for the purchase of another
image of San Vicente Ferrer to be installed in his church.
There can be no question that the image in question
belongs to the barangay council. Father Osmeña claim
that it belongs to his church is wrong. The barangay
council, as owner of the image, has the right to
determine who should have custody thereof.
If it chooses to change its mind and decides to give the
image to the Catholic church, that action would not
violate the Constitution because the image was acquired
with private funds and is its private property.
The council has the right to take measures to recover
possession of the image by enacting Resolutions Nos. 10
and 12.
Not every governmental activity which involves the
expenditure of public funds and which has some
religious tint is violative of the constitutional provisions
regarding separation of church and state, freedom of
worship and banning the use of public money or
property.
(Lower Court’s decision affirmed)
LEMON vs. KURTZMAN
(1971)
This case was heard concurrently with two others, Early
v. DiCenso (1971) and Robinson v. DiCenso (1971). The
cases involved controversies over laws in Pennsylvania
and Rhode Island. In Pennsylvania, a statute provided
financial support for teacher salaries, textbooks, and
instructional materials for secular subjects to non-public
schools. The Rhode Island statute provided direct
supplemental salary payments to teachers in non-public
elementary schools. Each statute made aid available to
"church-related educational institutions."
Question Presented
Did the Rhode Island and Pennsylvania statutes violate
the First Amendment's Establishment Clause by making
state financial aid available to "church-related
educational institutions"?
Conclusion
Yes. Writing for the majority, Chief Justice Burger
articulated a three-part test for laws dealing with
religious establishment. To be constitutional, a statute
must have "a secular legislative purpose," it must have
principal effects which neither advance nor inhibit
religion, and it must not foster "an excessive government
entanglement with religion." The Court found that the
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consti part 9: the church & the state
subsidization of parochial schools furthered a process of
religious inculcation, and that the "continuing state
surveillance" necessary to enforce the specific provisions
of the laws would inevitably entangle the state in
religious affairs. The Court also noted the presence of an
unhealthy "divisive political potential" concerning
legislation which appropriates support to religious
schools.
FACTS:
This case is actually 2 cases involving two States, Rhode
Island and Pennsylvania. In each city, laws were enacted
to provide aid for non-public schools and teachers. In
both cases, the statutes were challenged for being
violitive of the first amendment for creating an
entanglement between church and state.
RHODE ISLAND STATUTE:
Purpose: Keeping the quality of nonpublic elementary
schools.
Means: Direct payment of up to 15% extra salary to
nonpublic school teachers.
Qualifications: Teaching in a nonpublic school where
average per-pupil expenditure on secular education is
less than the average in the public schools. Teachers
must teach only secular subjects and must not teach
religion else lose the benefits accorded by the statute.
Background of schools:
Nonpublic schools: 25% of the State’s pupils.
95% went to RC schools.
Teachers who applied: all come from these RC
schools.
PENNSYLVANIA:
Purpose: Solve nonpublic school crisis due to rising
costs.
Means: Reimbursing nonpublic schools on expenditures
for teachers’ salaries, textbooks and instructional
materials.
Qualifications: Limited to courses also taught in public
schools. Also limited to secular subjects. Textbooks must
be approved.
Background of schools:
Nonpublic schools: 20% of State’s pupils. 96%
attended RC schools.
ISSUE:
WON the statutes enacted violated the first amendment
re: separation of Church and State, and are therefore
unconstitutional.
HELD:
consti 2 all stars
Yes they do, and yes they are. (Rhode Island Statute
struck down, Pennsylvania case remanded).
RATIO:
What is held to have been violated is the Religion
Clauses of the First Amendment. In this, the court
stated 3 evils which this Establishment Clause was to
protect against:
1) sponsorship
2) financial support
3) active involvement
It also stated 3 tests:
1) Statute must have a secular legislative
purpose
2) Principal or primary effect neither advances
nor inhibits religion
3) Statute must not foster an excessive
government entanglement with religion
Addressing the 3 tests, the first one has been passed as
the legislative intent/purpose is most definitely secular.
However, the court states that “the cumulative impact of
the entire relationship arising under the statutes in each
State involves excessive entanglement between
government and religion”.
As the schools taken into are church schools, they are
seen as powerful vehicles for transmitting the Catholic
faith. As such, this substantial religious character gives
rise to entangling church-state relationships. Also
adding to the danger is the particular type of aid (though
the case doesn’t really say why). Also taken into
consideration is the teachers’ means of teaching. There
is no way of ascertaining if the teachers will inject a
religious aspect into their teaching. Lastly is the fact that
the schools and their teachers are subject to religious
authority, and teachers are even told (in the “Handbook
of School Regulations”) to stimulate interest in religious
vocations and missionary work.
Mostly, though, the court is most afraid of actual
entanglement that will be caused through the
implementation of the laws. Due to the need for
surveillance and controlling measures (as the State must
run through applications to see who qualifies), there is
created the entanglement that the Clause protects
against. “...the very restrictions and surveillance
necessary to ensure that teachers play a strictly
nonideological role gives rise to entanglements...”
The Pennsylvania statute goes even further, as it
provides direct financial aid to these schools.
Another consideration is the divisive political potential of
the statutes. The court here stated that state assistance
will entail considerable political activity. This refers to
the division that will occur between those for and against
state aid, thereby making it a political struggle. Here the
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consti part 9: the church & the state
state says that while political debate and division are
normal, those predicated on religious lines are what the
First Amendment sought to protect the country from.
The court ends by saying that while the tax exemption
challenge fell to over 200 years of universal practice,
state aid has no such support. Also, these statutes
create a direct entanglement, which was sought to be
avoided. The constitution deems religion to be a private
matter, so the government must exclude itself from such
an area.
BOARD of EDUCATION vs. ALLEN
(1968)
Justice White
FACTS:
1. A law (701 of the Education Law) of New York
requires local public school boards to purchase
textbooks and lend those textbooks free of
charge to all students in grades seven through
12; students attending private schools are
included. The books loaned are "text-books
which are designated for use in any public,
elementary or secondary schools of the state or
are approved by any boards of education," and
which "a pupil is required to use as a text for a
semester or more in a particular class in the
school he legally attends."
2. Board of Education of Central School District
No. 1 brought suit in the New York courts
against James Allen because Allen would remove
the members of the Board from office if they fail
to lend books to parochial school students. The
members of the Board contend that the law was
invalid.
3. The trial court held the law unconstitutional.
The NY Court of Appeals held that 701 was not
in violation of either the State or the Federal
Constitution. The CA said that the law's purpose
was to benefit all school children, regardless of
the type of school they attended, and that only
textbooks approved by public school authorities
could be loaned. It considered 701 "completely
neutral with respect to religion, merely making
available secular textbooks at the request of the
individual student and asking no question about
what school he attends." Board of Education
brought the case to the US SC.
ISSUE:
WoN the statute is a "law respecting an
establishment of religion, or prohibiting the free exercise
thereof," and so in conflict with the 1st and 14th
Amendments to the Constitution, because it authorizes
the loan of textbooks to students attending parochial
schools.
consti 2 all stars
DECISION:
The law is not in violation of the Constitution.
RATIO:
1. The language of 701 does not authorize the loan of
religious books, and the State claims no right to
distribute religious literature. Although the books
loaned are those required by the parochial school
for use in specific courses, each book loaned must
be approved by the public school authorities; only
secular books may receive approval.
2. The express purpose of 701 was stated by the New
York Legislature to be furtherance of the
educational opportunities available to the young.
Appellants have shown us nothing about the
necessary effects of the statute that is contrary to
its stated purpose. The law merely makes available
to all children the benefits of a general program to
lend school books free of charge. Books are
furnished at the request of the pupil and
ownership remains, at least technically, in the
State. Thus no funds or books are furnished to
parochial schools, and the financial benefit is to
parents and children, not to schools.
3. The record contains no suggestion that religious
books have been loaned. Absent evidence, the SC
cannot assume that school authorities are unable
to distinguish between secular and religious books
or that they will not honestly discharge their
duties under the law. In judging the validity of the
statute on this record the Court must proceed on
the assumption that books loaned to students are
books that are not unsuitable for use in the public
schools because of religious content.
4. Everson v. Board of Education. The test for
distinguishing between forbidden involvements of
the state with religion: what are the purpose and
the primary effect of the enactment? If either is the
advancement or inhibition of religion then the
enactment exceeds the scope of legislative power
as circumscribed by the Constitution. To
withstand the strictures of the Establishment
Clause there must be a secular legislative purpose
and a primary effect that neither advances nor
inhibits religion.
5. The Court has long recognized that religious
schools pursue two goals, religious instruction
and secular education. The State's interest in
education would be served sufficiently by reliance
on the secular teaching that accompanied
religious training in the schools maintained by a
religious order (Pierce v Society of Siters). A
substantial body of case law has confirmed the
power of the States to insist that if the State must
satisfy its interest in secular education through
the instrument of private schools, it has a proper
interest in the manner in which those schools
perform their secular educational function.
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consti part 9: the church & the state
COUNTY OF ALLEGHENY vs. ACLU
& LYNCH vs. DONELLY
LYNCH V DONNELLY
FACTS:
This concerns the constitutionality of 2 recurring holiday
displays located on public property in downtown
Pittsburgh.
• The first, a crèche depicting the Christian
Nativity scene, was placed on the Grand
Staircase of the Allegheny Courthouse, w/c is
the main, most beautiful, and most public part
of the courthouse. The crèche was donated by
the Holy Name Society, a Roman Catholic
group, and bore a sign to that effect.
• The second was an 18-foot Chanukah menorah
or candelabrum, w/c was placed just outside the
City County building next to the city’s 45-foot
Christmas tree. At the foot of the tree was a sign
bearing the mayor’s name & containing text
declaring the city’s salute to liberty. The
menorah is owned by Chabad, a Jewish group,
but is stored, erected, and removed each year by
the city.
• Respondents (the Greater Pittsburgh Chapter of
the American Civil Liberties Union & 7 local
residents) filed suit seeking permanently to
enjoin the county from displaying the menorah
on the ground that the displays violated the
Establishment Clause of the 1st Amendment.
• The CA for the 3rd Circuit ruled that each
display violates the Establishment Clause
because each has the impermissible effect of
endorsing religion.
ISSUE:
1. WON display of crèche violates
Establishment clause. YES
2. WON display of menorah violates
Establishment clause. NO
RATIO:
The Establishment Clause
• The Establishment Clause: “Congress shall
make no law respecting an establishment of
religion, or prohibiting the free exercise thereof..”
• Lemon v Kurtzman provides 3 tests for
determining whether a gov’t practice violates the
Clause. A statute or practice w/c touches upon
religion, if it is to be permissible under the
Clause must 1) have a secular purpose; 2)
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neither advance nor inhibit religion in its
principal or primary effect; 3) not foster an
excessive entanglement with religion.
• The essence of the Clause: It prohibits govt
from appearing to take a position on
questions of religious belief or from “making
adherence to a religion relevant in any way
to a person’s standing in the political
community.”
• ISSUE: WON the city of Pawtucket had violated
the Establishment Clause by including a creche
in its annual Christmas display, located in a
private park w/n downtown shopping district.
• By a 5-4 decision, Court upheld inclusion of the
crèche in the display, holding that it didn’t have
the effect of advancing or promoting religion.
• J. O’CONNOR wrote a concurrence w/c provides
framework for evaluating govt’l use of religious
symbols: 1) O’Connor recognizes any
endorsement of religion as invalid because it
sends a message to nonadherents that they are
outsiders, not full members of the political
community, and an accompanying message to
adherents that they are insiders, favored
members of the political community; 2) She
provides a method for determining whether the
govt’s use of an object with religious meaning
has the effect of endorsing religion. The effect of
the display depends upon the message that the
govt’s practice communicates: the question is
what viewers may fairly understand to be the
purpose of the display. That inquiry turns upon
the context in which the contested object
appears.
• The concurrence concluded that both because
the crèche is a “traditional symbol” of
Christmas, a holiday with strong secular
elements, and because the crèche was
“displayed along with purely secular symbols”
(i.e. a Santa Claus House w/ a live Santa
distributing candy; 40-ft Xmas tree; banner w/
“Season’s Greetings”, etc), the creche’s setting
changes what viewers may fairly understand to
be the purpose of the display and negates any
message f endorsement of the Christian beliefs
represented by the crèche.
• The concurrence and dissent in Lynch agree
that: 1) govt’s use of religious symbolism is
unconstitutional if it has the effect of
endorsing religious beliefs; 2) effect of the
govt’s use of religious symbolism depends
upon its context.
1. ON CRECHE
• There is no doubt that the crèche itself is
capable of communicating a religious message.
The angel in the crèche endorses a patently
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consti part 9: the church & the state
Christian message: “Glory to God in the
Highest”
• Court held in Lynch that the effect of a crèche
display depends on its setting. Here, unlike in
Lynch, nothing in the context of the display
detracts from the creche’s religious message.
The Lynch display comprised a series of figures
and objects, each group of which had its own
focal point. Here, in contrast, the crèche stands
alone: it is the single element of the display
on the Grand Staircase.
• Further, by permitting the display of the crèche
in the main & most beautiful part of the
building, the county sends an unmistakable
message that it supports and promotes the
Christian praise to God.
• The fact that the crèche bears a sign disclosing
its ownership by a Roman Catholic group
demonstrates that the govt is endorsing the
religious message of that organization, rather
than communicating a message of its own. The
Clause prohibits what occurred here: the govt’s
lending its support to the communication of a
religious’ organization’s religious message.
• Govt may acknowledge Christmas as a cultural
phenomenon, but under the 1st Amendment, it
may not observe it as a Christian holy day by
suggesting that people praise God for the birth
of Jesus.
• Lynch teaches that govt may celebrate Xmas in
some manner and form, but not in a way that
endorses Christian doctrine as the Allegheny
County did in displaying the crèche.
On Justice Kennedy’s opinion upholding the display
of the crèche as permissible under the Clause
• Kennedy says the display of the crèche is
consistent with the Establishment Clause. He
argues that this follows from the Marsh v
Chambers decision, which sustained the
constitutionality of a legislative prayer. He also
asserts that the crèche, even in this setting,
poses no realistic risk of representing an effort to
proselytize, having repudiated the Court’s
endorsement inquiry in favor of a season emphasizes this point.
proselytization approach. Court’s analysis of
the crèche reflects an unjustified hostility toward
religion.
• Court answered that history cannot legitimate
practices like the crèche display that
demonstrate the govt’s allegiance to a particular
sect or creed.
• The proselytization test preferred by Kennedy is
much the same as the endorsement inquiry
except to the extent that the former requires an
obvious allegiance between the government and
the favored sect.
• *Endorsement inquiry: WON the practice
demonstrates the govt’s support, promotion or
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endorsement of the particular creed of a
particular sect
• *Proselytization test: WON the practice would
place the govt’s weight behind an obvious effort
to proselytize for a particular religion
• Court said that Kennedy misperceived a respect
for religious pluralism as hostility or indifference
to religion.
• The Constitution mandates that the government
remain secular, rather than affiliating itself with
religious beliefs or institutions, precisely in order
to avoid discriminating against citizens on the
basis of their religious faiths. Thus, the claim
that prohibiting government from celebrating
Christmas as a religious holiday discriminates
against Christians in favor of nonadherents
must fail, since it contradicts the fundamental
premise of the Establishment Clause itself. In
contrast, confining the government's own
Christmas celebration to the holiday's secular
aspects does not favor the religious beliefs of
non-Christians over those of Christians, but
simply permits the government to acknowledge
the holiday without expressing an impermissible
allegiance to Christian beliefs.
2. ON MENORAH
• The Chanukah menorah is a religious symbol.
But its message is not exclusively religious. It is
the primary visual symbol for a holiday that, like
Christmas, has both religious and secular
dimensions.
• Its display doesn’t have the prohibited effect of
endorsing religion given its particular physical
setting. Its combined display with a Christmas
tree & a sign saluting liberty does not
impermissibly endorse both the Christian and
Jewish faiths (which is no less constitutionally
infirm than the endorsement of Christianity
alone), but simply recognizes that both
Christmas and Chanukah are part of the same
winter-holiday season, which has attained a
secular status in our society. The widely
accepted view of the Christmas tree as the
preeminent secular symbol of the Christmas
• The tree, moreover, is clearly the predominant
element in the city’s display by virtue of its size
and central position. The placement of the
menorah beside it is readily understood as a
recognition that Christmas is not the only
traditional way of celebrating the season.
• Similarly, the presence of the mayor’s sign
confirms that in the particular context the govt’s
association with a religious symbol does not
represent sponsorship of religious beliefs but
simply a recognition of cultural diversity.
LYNCH VS. DONNELLY - SUMMARY
FACTS:
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consti part 9: the church & the state
The city of Pawtucket, R. I., annually erects a Christmas
display in a park owned by a nonprofit organization and
located in the heart of the city's shopping district. The
display includes, in addition to such objects as a Santa
Claus house, a Christmas tree, and a banner that reads
"SEASONS GREETINGS," a creche or Nativity scene,
which has been part of this annual display for 40 years
or more. Respondents brought an action in Federal
District Court, challenging the inclusion of the creche in
the display on the ground that it violated the
Establishment Clause of the First Amendment, as made
applicable to the states by the Fourteenth Amendment.
The District Court upheld the challenge and
permanently enjoined the city from including the creche
in the display. The Court of Appeals affirmed.
ISSUE:
WON display of crèche violates Establishment Clause.
HELD:
Notwithstanding the religious significance of the creche,
Pawtucket has not violated the Establishment Clause
RATIO:
• The concept of a "wall" of separation between
church and state is a useful metaphor but is not
an accurate description of the practical aspects
of the relationship that in fact exists. The
Constitution does not require complete
separation of church and state; it affirmatively
mandates accommodation, not merely tolerance,
of all religions, and forbids hostility toward any.
• This Court's interpretation of the Establishment
Clause comports with the contemporaneous
understanding of the Framers' intent. That
neither the draftsmen of the Constitution, nor
the First Congress itself, saw any establishment
problem in employing Chaplains to offer daily
prayers in the Congress is a striking example of
the accommodation of religious beliefs intended
by the Framers.
• Our history is pervaded by official
acknowledgment of the role of religion in
American life, and equally pervasive is evidence
of accommodation of all faiths and all forms of
religious expression and hostility toward none.
• Rather than taking an absolutist approach in
applying the Establishment Clause and
mechanically invalidating all governmental
conduct or statutes that confer benefits or give
special recognition to religion in general or to
one faith, this Court has scrutinized challenged
conduct or legislation to determine whether, in
reality, it establishes a religion or religious faith or
tends to do so. In the line-drawing process called
for in each case, it has often been found useful
to inquire whether the challenged law or conduct
has a secular purpose, whether its principal or
primary effect is to advance or inhibit religion, and
whether it creates an excessive entanglement of
government with religion. But this Court has
been unwilling to be confined to any single test
or criterion in this sensitive area.
consti 2 all stars
• Here, the focus of the inquiry must be on the
creche in the context of the Christmas season.
Focus exclusively on the religious component of
any activity would inevitably lead to its
invalidation under the Establishment Clause.
• Based on the record in this case, the city has a
secular purpose for including the creche in its
Christmas display and has not impermissibly
advanced religion or created an excessive
entanglement between religion and
government. The display is sponsored by the
city to celebrate the Holiday recognized by
Congress and national tradition and to depict
the origins of that Holiday; these are legitimate
secular purposes. Whatever benefit to one faith
or religion or to all religions inclusion of the
creche in the display effects, is indirect, remote,
and incidental, and is no more an advancement
or endorsement of religion than the
congressional and executive recognition of the
origins of Christmas, or the exhibition of
religious paintings in governmentally supported
museums.
• As to administrative entanglement, there is no
evidence of contact with church authorities
concerning the content or design of the
exhibition prior to or since the city's purchase of
the creche. No expenditures for maintenance of
the creche have been necessary, and, since the
city owns the crèche (worth $200), the tangible
material it contributes is de minimis. Political
divisiveness alone cannot serve to invalidate
otherwise permissible conduct, and, in any
event, apart from the instant litigation, there is
no evidence of political friction or divisiveness
over the creche in the 40-year history of the
city's Christmas celebration.
• It would be ironic if the inclusion of the creche
in the display, as part of a celebration of an
event acknowledged in the Western World for 20
centuries, and in this country by the people, the
Executive Branch, Congress, and the courts for
2 centuries, would so "taint" the exhibition as to
render it violative of the Establishment Clause.
To forbid the use of this one passive symbol
while hymns and carols are sung and played in
public places including schools, and while
Congress and state legislatures open public
sessions with prayers, would be an overreaction
contrary to this Nation's history and this Court's
holdings.
EPPERSON vs. ARKANSAS
J.Fortas
FACTS:
Susan Epperson, was employed by the Little Rock school
system in the fall of 1964 to teach 10th grade biology at
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consti part 9: the church & the state
Central High School. Until 1964 the official textbook
furnished for the high school biology course did not have
a section on the Darwinian Theory. Then, for the
academic year 1965--1966, the school administration,
on recommendation of the teachers of biology in the
school system, adopted and prescribed a textbook which
contained a chapter setting forth 'the theory about the
origin * * * of man from a lower form of animal.'
The Arkansas law makes it unlawful for a teacher in any
state-supported school or university 'to teach the theory
or doctrine that mankind ascended or descended from a
lower order of animals,' or 'to adopt or use in any such
institution a textbook that teaches' this theory. Violation
is a misdemeanor and subjects the violator to dismissal
from his position. The Arkansas statute was an adaption
of the famous Tennessee 'monkey law' which that State
adopted in 1925. The constitutionality of the Tennessee
law was upheld by the Tennessee Supreme Court in the
celebrated Scopes case in 1927.
Epperson faced at least a literal dilemma because she
was supposed to use the new textbook for classroom
instruction and presumably to teach the statutorily
condemned chapter; but to do so would be a criminal
offense and subject her to dismissal. Petitioner
challenges the constitutionality of the 'anti-evolution'
statute which the State of Arkansas adopted in 1928 to
prohibit the teaching in its public schools and
universities of the theory that man evolved from other
species of life.
ISSUE/HELD:
W/O Not the statute violates the constitutional
provisions respecting an establishment of religion or
prohibiting its free exercise (1st Amendment), and free
speech ( 14th Amendment) . YES
RATIO:
Government in our democracy, state and national, must
be neutral in matters of religious theory, doctrine, and
practice. It may not be hostile to any religion or to the
advocacy of no religion; and it may not aid, foster, or
promote one religion or religious theory against another
or even against the militant opposite. The First
Amendment mandates governmental neutrality between
religion and religion, and between religion and non-
religion.
There is and can be no doubt that the First Amendment
does not permit the State to require that teaching and
learning must be tailored to the principles or
prohibitions of any religious sect or dogma. The State's
undoubted right to prescribe the curriculum for its
public schools does not carry with it the right to
prohibit, on pain of criminal penalty, the teaching of a
scientific theory or doctrine where that prohibition is
based upon reasons that violate the First Amendment.
consti 2 all stars
In the present case, there can be no doubt that Arkansas
has sought to prevent its teachers from discussing the
theory of evolution because it is contrary to the belief of
some that the Book of Genesis must be the exclusive
source of doctrine as to the origin of man. No suggestion
has been made that Arkansas' law may be justified by
considerations of state policy other than the religious
views of some of its citizens. It is clear that
fundamentalist sectarian conviction was and is the law's
reason for existence.
Arkansas' law cannot be defended as an act of religious
neutrality. Arkansas did not seek to excise from the
curricula of its schools and universities all discussion of
the origin of man. The law's effort was confined to an
attempt to blot out a particular theory because of its
supposed conflict with the Biblical account, literally
read. Plainly, the law is contrary to the mandate of the
First, and in violation of the Fourteenth, Amendment to
the Constitution.
SCHOOL DISTRICT vs. SCHEMPP
Justice CLARK
FACTS:
Applicable Amendments:
1. First Amendment, Establishment Clause: Congress
shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof.
- No. 142 – The Commonwealth of Pennsylvania
requires that at least ten verses from the Holy
Bible shall be read without comment, at the
opening of each Public school on each school
day. Any child shall be excused from such Bible
reading, or attending such Bible reading, upon
the request of his parent or guardian. The
exercises are broadcast into each room in the
building through an intercom system. This is
followed by the recitation of the Lord’s Prayer.
Participation in the open exercises was
considered voluntary. The student reading the
bible must select the passages and read any
form or version he chases. (King James version,
Douay or the Revised Standard versions as well
as the Jewish Holy Scriptures)
- The constitutionality of the said statute was
assailed by Edward Schempp, a member of the
Unitarian faith who, along with his wife and
children, questioned the validity of the statute,
contending that his rights have been violated,
under the 14th of table and to the Constitution of
the United States.
- The children study in Abington Senior High
School
- Schempp testified that he at first refused to
exercise his prerogative of excusing his children
from the morning exercises upon fear that his
children would be labeled as odd balls. Their
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consti part 9: the church & the state
classmates would be liable for lumping religious
differences and objections as atheism with
immoral and un-patriotic overtones.
- Doctor Solomon Grayzel (witness for the
appellees): The reading of such verses without
explanation may be psychologically harmful to
the children and may cause a divisive force in
the social media of the school.
- Doctor Luther A. Weigle (witness for the
defense): The Bible is a non-sectarian piece of
literature within among the Christian faiths. The
exclusion of the New Testament would be in
itself a sectarian practice.
- The trial court struck down the practices and
the statute requiring them after making the
specific findings of fact that attendance to
Abington and undergoing the practices were
compulsory. The court further found that the
reading of the verses without comment would
constitute in effect a religious observance.
- The court rejected the defense’s argument that the
children were allowed to excuse themselves via their
parents’ request, saying that it did not mitigate the
obligatory nature of the ceremony. This was still in
violation of the establishment clause in that it
threatens religious liberty by putting a premium
upon belief as opposed to non-belief, rendering
sinister, alien, and suspect the beliefs, ideals, and
even morality of the petitioners.
ISSUE:
WON rule 142 of the Commonwealth of Pennsylvania is
unconstitutional under the violation of the
Establishment Clause under the Fourteenth
Amendment.
HELD:
Yes.
RATIO:
I. It is true that religion has been closely identified
with American history and government. This
background is evidence today in our public life
through the continuance in our oaths of office
from the Presidency to the Alderman of the final
supplication, “So held me God.” Indeed, only last
year, an official survey of the country indicated
that 64% of our people have church membership
while 3% profess no faith at all. This is not to
say, however that religion has been so identified
with our history and government that religious
freedom is not likewise as strongly imbedded in
out public and private life. Nothing but the most
telling of personal experiences in religious
persecution could have implanted such belief.
II. Minor v. Board of Education of Cincinnati: (J.
Alphonso Taft) First, the court has decisively
settled the First Amendment’s mandate that
‘Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof’ has been made wholly
applicable to the States under the 14th
consti 2 all stars
amendment. Second, this Court has rejected
unequivocally the contention that the
Establishment Clause forbids only governmental
preference of one religion over the other.
Justice Rutledge, joined by Frankfurter, Jackson and
Burton: The First Amendment’s
purpose was to create a complete
and permanent separation of the
spheres of religious activity and civil
authority by comprehensively
forbidding any form of public aid or
support for religion.
III. Interrelationship between the Establishment
and Free Exercise Clauses: The former
forestalls compulsion by law of the acceptance of
any form of worship. Freedom to choose a belief
cannot be restricted by Law. The latter protects
the freedom to exercise the chosen form of
religion. This it embraces two concepts:
Freedom to believe and Freedom to Act.
(Cantwell v. Connecticut)
- Public Schools are organized on the premise
that secular education can be isolated from all
religious teaching so that the school can
inculcate all needed temporal knowledge and
also maintain strict and lofty neutrality as to
religion.
- McGowan v. Maryland: The First Amendment
did not simply bar a congressional enactment
establishing a church; it forbade all laws
respecting an establishment of religion.
- Engel v. Vitale: The establishment and free
exercise clauses in certain instances overlap.
The former does not depend upon any showing
of direct governmental compulsion and is
violated by the enactment of laws which
establish an official religion whether those
laws directly operate to coerce non-observing
individuals or not. The former works also on
the belief that a union of government and
religion tends to destroy government and
degrade religion.
IV. The neutrality of which the Court’s cases
speak thus stem from the recognition from
history of the tendency of religious sects to
fuse governmental and religious functions or
cause a concert of dependence of one upon the
other placing State support behind the tenets
of one or all orthodoxies.
Test for Establishment Clause:
1. Existence of a secular legislative purpose
2. The primary effect that neither advances nor
inhibits religion.
Test for Free Exercise Clause:
1. Proof of the coercive effect of the enactment
as it operates against anyone in the practice
of religion.
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consti part 9: the church & the state
- We agree with the trial court’ finding as to the
religious character of the exercises and are
thus in violation of the establishment clause.
- It is also insisted that unless religious
exercises are permitted a ‘religion of
secularism’ is established in schools. We agree
that a religion of secularism cannot be
established in the sense of affirmatively
opposing or showing hostility to religion, thus
preferring belief over non-belief.
- While the Free Exercise clause clearly
prohibits the use of state action to deny the
rights of free exercise to anyone, it has never
meant that a majority could use the
machinery of the state to practice beliefs.
ENGEL vs. VITALE
04/03/62
Black, J.
FACTS:
Repondent Board of Education of Union Free School
District 9, acting under New York State law, composed a
prayer that was to be recited at the start of each class
that went: "Almighty God, we acknowledge our
dependence upon Thee, and we beg Thy blessings upon
us, our parents, our teachers and our Country."
The program was supported by the NY State Board of
Regents. The parents of ten pupils brought this action in
a New York State Court insisting that use of this official
prayer in the public schools was contrary to the beliefs,
religions, or religious practices of both themselves and
their children. NY CA sustained an order of the lower
state courts which had upheld the power of New York to
use the Regents' prayer as a part of the daily procedures
of its public schools so long as the schools did not
compel any pupil to join in the prayer over his or his
parents' objection. petitioners appealed.
petitoners: prayer violates the non-establishment of
religion clause in the 1st Amendment (the State's use of
the Regents' prayer in its public school system breaches
the constitutional wall of separation between Church
and State.)
respondents: prayer is "non-denominational"; the
program, as modified and approved by state courts, does
not require all pupils to recite the prayer but permits
those who wish to do so to remain silent or be excused
from the room; to apply the Constitution in such a way
as to prohibit state laws respecting an establishment of
religious services in public schools is to indicate a
hostility toward religion or toward prayer.
ISSUE:
WON the prayer is a religious exercise, the establishment
of which is prohibited by the 1st amendment
consti 2 all stars
HELD:
YES. There can be no doubt that the prayer is a religious
exercise; the State of New York has adopted a practice
wholly inconsistent with the Non-Establishment Clause.
the constitutional prohibition against laws respecting an
establishment of religion must at least mean that in this
country it is no part of the business of government to
compose official prayers for any group of the American
people to recite as a part of a religious program carried
on by government. In an effort to explain the clause, the
court looked at the history of the separation of church
and state saying that " it is a matter of history that this
very practice of establishing governmentally composed
prayers for religious services was one of the reasons
which caused many of our early colonists to leave
England and seek religious freedom in America" In
England where there was a state religion, many people
who held contrary beliefs were unable to exercise such.
By the time of the adoption of the Constitution, our
history shows that there was a widespread awareness
among many Americans of the dangers of a union of
Church and State. These people knew, some of them
from bitter personal experience, that one of the greatest
dangers to the freedom of the individual to worship in
his own way lay in the Government's placing its official
stamp of approval upon one particular kind of prayer or
one particular form of religious services.
The Constitution was intended to avert a part of this
danger by leaving the government of this country in the
hands of the people rather than in the hands of any
monarch. But this safeguard was not enough. Our
Founders were no more willing to let the content of their
prayers and their privilege of praying whenever they
pleased be influenced by the ballot box than they were to
let these vital matters of personal conscience depend
upon the succession of monarchs. The First Amendment
was added to the Constitution to stand as a guarantee
that neither the power nor the prestige of the Federal
Government would be used to control, support or
influence the kinds of prayer the American people can
say -- that the people's religions must not be subjected
to the pressures of government for change each time a
new political administration is elected to office. Under
that Amendment's prohibition against governmental
establishment of religion, as reinforced by the provisions
of the Fourteenth Amendment, government in this
country, be it state or federal, is without power to
prescribe by law any particular form of prayer which is
to be used as an official prayer in carrying on any
program of governmentally sponsored religious activity.
The history of governmentally established religion, both
in England and in this country, showed that whenever
government had allied itself with one particular form of
religion, the inevitable result had been that it had
incurred the hatred, disrespect and even contempt of
those who held contrary beliefs. Another purpose of the
Establishment Clause rested upon an awareness of the
historical fact that governmentally established religions
and religious persecutions go hand in hand.
re: respondents first argument
Neither the fact that the prayer may be denominationally
neutral nor the fact that its observance on the part of the
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consti part 9: the church & the state
students is voluntary can serve to free it from the
limitations of the Establishment Clause, as it might from
the Free Exercise Clause, of the First Amendment, both
of which are operative against the States by virtue of the
Fourteenth Amendment.
re: respondents second argument
It is neither sacrilegious nor antireligious to say that
each separate government in this country should stay
out of the business of writing or sanctioning official
prayers and leave that purely religious function to the
people themselves and to those the people choose to look
to for religious guidance.
Reversed and remanded.
ZELMAN vs. SIMMONS-HARRIS
FACTS:
Ohio's Pilot Project Scholarship Program gives
educational choices to families in any Ohio school
district that is under state control pursuant to a federal-
court order. The program provides tuition aid for certain
students in the Cleveland City School District, the only
covered district, to attend participating public or private
schools of their parent's choosing and tutorial aid for
students who choose to remain enrolled in public school.
Both religious and nonreligious schools in the district
may participate, as may public schools in adjacent
school districts. Tuition aid is distributed to parents
according to financial need, and where the aid is spent
depends solely upon where parents choose to enroll their
children. The number of tutorial assistance grants
provided to students remaining in public school must
equal the number of tuition aid scholarships. In the
1999-2000 school year, 82% of the participating private
schools had a religious affiliation, none of the adjacent
public schools participated, and 96% of the students
participating in the scholarship program were enrolled in
religiously affiliated schools. Sixty percent of the
students were from families at or below the poverty line.
Cleveland schoolchildren also have the option of
enrolling in community schools, which are funded under
state law but run by their own school boards and receive
twice the per-student funding as participating private
schools, or magnet schools, which are public schools
emphasizing a particular subject area, teaching method,
or service, and for which the school district receives the
same amount per student as it does for a student
enrolled at a traditional public school. Respondents,
Ohio taxpayers, sought to enjoin the program on the
ground that it violated the Establishment Clause. The
Federal District Court granted them summary judgment,
and the Sixth Circuit affirmed.
consti 2 all stars
ISSUE: WON the program offends the Establishment
Clause. NO.
RATIO:
(a) A government aid program is not readily subject to
challenge under the Establishment Clause if it 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.
Under such a program, government aid reaches religious
institutions only by way of the deliberate choices of
numerous individual recipients. The incidental
advancement of a religious mission, or the perceived
endorsement of a religious message, is reasonably
attributable to the individual aid recipients not the
government, whose role ends with the disbursement of
benefits.
(b) It is neutral in all respects towards religion, and is
part of Ohio's general and multifaceted undertaking to
provide educational opportunities to children in a failed
school district. It confers educational assistance directly
to a broad class of individuals defined without reference
to religion and permits participation of all district
schools--religious or nonreligious--and adjacent public
schools. The only preference in the program is for low-
income families, who receive greater assistance and have
priority for admission. Rather than creating financial
incentives that skew it towards religious schools, the
program creates financial disincentives: Private schools
receive only half the government assistance given to
community schools and one-third that given to magnet
schools, and adjacent public schools would receive two
to three times that given to private schools. Families too
have a financial disincentive, for they have to copay a
portion of private school tuition, but pay nothing at a
community, magnet, or traditional public school. No
reasonable observer would think that such a neutral
private choice program carries with it the imprimatur of
government endorsement. Nor is there evidence that the
program fails to provide genuine opportunities for
Cleveland parents to select secular educational options:
Their children may remain in public school as before,
remain in public school with funded tutoring aid, obtain
a scholarship and choose to attend a religious school,
obtain a scholarship and choose to attend a nonreligious
private school, enroll in a community school, or enroll in
a magnet school. The Establishment Clause question
whether Ohio is coercing parents into sending their
children to religious schools must be answered by
evaluating all options Ohio provides Cleveland
schoolchildren, only one of which is to obtain a
scholarship and then choose a religious school.
Cleveland's preponderance of religiously affiliated
schools did not result from the program, but is a
phenomenon common to many American cities. Eighty-
two percent of Cleveland's private schools are religious,
as are 81% of Ohio's private schools. To attribute
constitutional significance to the 82% figure would lead
to the absurd result that a neutral school-choice
program might be permissible in parts of Ohio where the
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consti part 9: the church & the state
percentage is lower, but not in Cleveland, where Ohio
has deemed such programs most sorely needed.
Likewise, an identical private choice program might be
constitutional only in States with a lower percentage of
religious private schools.
TILTON vs. RICHARDSON
FACTS:
• The Higher Education Facilities Act was passed
in 1963 in response to a strong nationwide
demand for the expansion of college and
university facilities to meet the sharply rising
number of young people demanding higher
education. The Act authorizes federal grants and
loans to "institutions of higher education" for the
construction of a wide variety of "academic
facilities." But expressly excludes
"any facility used or to be used for sectarian
instruction or as a place for religious worship, or
. . . any facility which . . . is used or to be used
primarily in connection with any part of the
program of a school or department of divinity . .
. ."
• no part of the project may be used for sectarian
instruction, religious worship, or the programs
of a divinity school.
• If, during this period (a period of 20 years), the
recipient violates the statutory conditions, the
United States is entitled to recover an amount
equal to the proportion of its present value that
the federal grant bore to the original cost of the
facility.
• Four church-related colleges and universities in
Connecticut receiving federal construction
grants under Title I were named as defendants.
Federal funds were used for five projects at these
four institutions: (1) a library building at Sacred
Heart University; (2) a music, drama, and arts
building at Annhurst College; (3) a science
building at Fairfield University; (4) a library
building at Fairfield; and (5) a language
laboratory at Albertus Magnus College.
• Appellants attempted to show that the four
recipient institutions were "sectarian" by
introducing evidence of their relations with
religious authorities, the content of their
curricula, and other indicia of their religious
character.
• Appellee colleges introduced testimony that they
had fully complied with the statutory conditions
and that their religious affiliation in no way
interfered with the performance of their secular
educational functions.
ISSUES/HELD:
consti 2 all stars
1. WON Act authorized grants to church-related
schools  yes
2. WON religion clauses of the consti have been
impaired  in part, yes but the entire act is not
unconsti
* Vacated and remanded.
RATIO:
1. We are satisfied that Congress intended the Act
to include all colleges and universities regardless
of any affiliation with or sponsorship by a
religious body. The Act makes no reference to
religious affiliation or nonaffiliation. Under these
circumstances "institutions of higher education"
must be taken to include church-related colleges
and universities.
2. Court have noted the internal tension in the
First Amendment between the Establishment
Clause and the Free Exercise Clause. the
Establishment Clause sought to protect:
"sponsorship, financial support, and active
involvement of the sovereign in religious
activity." Every analysis must begin with the
candid acknowledgment that there is no single
constitutional caliper that can be used to
measure the precise degree to which these three
factors are present or absent. There is only a
cumulative criteria which is this:
Against this background we consider four questions:
a) does the Act reflect a secular legislative
purpose? Yes
~> United States require that the youth be assured
ample opportunity for the fullest development of their
intellectual capacities. This expresses a legitimate
secular objective entirely appropriate for governmental
action. The crucial question is not whether some benefit
accrues to a religious institution as a consequence of the
legislative program, but whether its principal or primary
effect advances religion. The Act itself was carefully
drafted to ensure that the federally subsidized facilities
would be devoted to the secular and not the religious
function of the recipient institutions. It authorizes grants
and loans only for academic facilities that will be used
for defined secular purposes and expressly prohibits
their use for religious instruction, training, or worship.
None of the four church-related institutions in this case
has violated the statutory restrictions. There had been
no religious services or worship in the federally financed
facilities; no religious symbols or plaques in or on them;
used solely for nonreligious purposes. There is no
evidence that religion seeps into the use of any of these
facilities. Schools were characterized by an atmosphere of
academic freedom rather than religious indoctrination.
b) is the primary effect of the Act to
advance or inhibit religion? Yes, in effect
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consti part 9: the church & the state
will help advance religion. This part held
unconstitutional.
~> We note that an institution applying for a federal
grant is only required to provide assurances that the
facility will not be used for sectarian instruction or
religious worship "during at least the period of the
Federal interest therein(20 years). This obviously opens
the facility to use for any purpose at the end of that
period. If, at the end of 20 years, the building is, for
example, converted into a chapel or otherwise used to
promote religious interests, the original federal grant will
in part have the effect of advancing religion. So this part
was held unconstitutional.
c) does the administration of the Act foster
an excessive government entanglement
with religion? No. the entanglement is
very much lessened for three reasons.
(application of strict scrutiny)
~> these four schools subscribe to a well-established set
of principles of academic freedom, and nothing in this
record shows that these principles are not in fact
followed. In short, the evidence shows institutions with
admittedly religious functions but whose predominant
higher education mission is to provide their students
with a secular education. Their purpose is not religious
indoctrination so there is less likelihood than in primary
and secondary schools that religion will permeate the
area of secular education. This reduces the risk that
government aid will in fact serve to support religious
activities.
~> The entanglement between church and state is also
lessened here by the nonideological character of the aid
that the Government provides. Neutral, or non-
ideological services, facilities, or materials are supplied
to all students regardless of the affiliation of the school
that they attend. Facilities are religiously neutral.
~> Government aid here is a one-time, single-purpose
construction grant. There are no continuing financial
relationships or dependencies.
*these three taken together shape a narrow and limited
relationship bet church and govt to become in danger of
realizing the substantive evils against which the Religion
Clauses were intended to protect.
d) lastly, does the implementation of the Act inhibit the
free exercise of religion in violation of the 1st
amendment? No. except of course that part of 20-year
limitation…
~> Appellants, however, are unable to identify any
coercion directed at the practice or exercise of their
religious beliefs.
VELARDE vs. SOCIETY for SOCIAL JUSTICE consti 2 all stars
J. PANGANIBAN
FACTS:
• A case was brought by respondent Social Justice
Society (SJS) against petitioner Mike Velarde,
together with Archbishop Jaime Cardinal Sin, Erano
Manalo, Bro. Eddie Villanueva & Eli Soriano in the
Regional Trial Court of Manila for the rresolution of
"whether or not the act of a religious leader like any
of herein respondents, in endorsing the candidacy of
a candidate for elective office or in urging or
requiring the members of his flock to vote for a
specified candidate, is violative of the letter or spirit
of the constitutional provisions”.
• The trial court opined that the "endorsement of
specific candidates in an election to any public office
is a clear violation of the separation clause."
• However, the trial court failed to include a
dispositive portion in its assailed Decision after its
essay on the legal issue.
• Thus, petitioners filed separate Motions for
Reconsideration on the assailed decision questioning
whether or not the decision of the lower court was
proper & valid in lieu of procedural deficiencies &
substantive issues
ISSUES:
1. Did the Petition for Declaratory Relief raise a
justiciable controversy? Did it state a cause of action?
Did respondent have any legal standing to file the
Petition for Declaratory Relief?
2. Did the RTC Decision conform to the form and
substance required by the Constitution, the law and
the Rules of Court?
3. May religious leaders like herein petitioner, Bro. Mike
Velarde, be prohibited from endorsing candidates for
public office? Corollarily, may they be banned from
campaigning against said candidates?"
HELD & RATIO:
1. NO. SJS miserably failed to allege an existing
controversy or dispute between the petitioner and the
respondents. Further, the Petition did not sufficiently
state what specific legal right of the SJS was violated by
the petitioners & what particular act or acts of the latter
were in breach of its rights, the law or the Constitution.
There was no concise & direct statement of the ultimate
facts on which it relies on its pleading for its claim. SJS
merely speculated or anticipated without factual
moorings that, as religious leaders, the petitioners below
had endorsed or threatened to endorse a candidate or
candidates for elective offices; and that such actual or
threatened endorsement "will enable them to elect men
to public office who would in turn be forever beholden to
their leaders, enabling them to control the government"
& "posing a clear and present danger of serious erosion
of the people’s faith in the electoral process; &
14
consti part 9: the church & the state
reinforcing their belief that religious leaders determine
the ultimate result of elections," which would then be
violative of the separation clause.
Such premise is highly speculative and merely
theoretical. The Petition does not even allege any
indication or manifest intent on the part of any of the
petitioners to champion an electoral candidate, or to
urge their so-called flock to vote for, or not to vote for, a
particular candidate. It is a time-honored rule that sheer
speculation does not give rise to an actionable right.
There is no factual allegation that SJS’ rights are being
subjected to any threatened, imminent and inevitable
violation that should be prevented by the declaratory
relief sought. The judicial power and duty of the courts
to settle actual controversies involving rights that are
legally demandable and enforceable cannot be exercised
when there is no actual or threatened violation of a legal
right.
Even if the court relaxed the requirements of locus
standi in view of its transcendental importance, counsels
for the parties -- particularly for Respondent SJS --
made no satisfactory allegations or clarifications that
would supply the deficiencies discussed. Hence, even if
the Court would exempt this case from the stringent
locus standi requirement, such heroic effort would be
futile because the transcendental issue cannot be
resolved anyway.
2. NO. The Constitution commands that "no decision
shall be rendered by any court without expressing
therein clearly and distinctly the facts and the law on
which it is based. No petition for review or motion for
reconsideration of a decision of the court shall be
refused due course or denied without stating the basis
therefor." Elementary due process demands that the
parties to a litigation be given information on how the
case was decided, as well as an explanation of the
factual and legal reasons that led to the conclusions of
the court. The significance of factual finding lies in the
value of the decision as a precedent. Such is intended to
inform the parties of the reason or reasons for the
decision so that if any of them appeals, he can point out
to the appellate court the finding of facts or the rulings
on points of law with which he disagrees. More than
that, the requirement is an assurance to the parties that,
in reaching judgment, the judge did so through the
processes of legal reasoning.
Essential Parts of a Good decision:
1. Statement of the case
2. Statement of the facts
3. Issues
4. Court ruling, in which each issue is, as a rule,
separately considered and resolved
5. Dispositive portion
consti 2 all stars
The assailed decision did not include a resolutory or
dispositive portion. It is merely an answer to a
hypothetical legal question and just a part of the opinion
of the trial court. It does not conclusively declare the
rights (or obligations) of the parties to the Petition.
Failure to comply with the constitutional injunction is a
grave abuse of discretion amounting to lack or excess of
jurisdiction. Decisions or orders issued in careless
disregard of the constitutional mandate are a patent
nullity and must be struck down as void.
3. Religious Leaders’ Endorsement of Candidates for
Public Office
The Court deems this constitutional issue to be of
paramount interest to the Filipino citizenry, for it
concerns the governance of our country and its people.
Thus, despite the obvious procedural transgressions by
both SJS and the trial court, this Court still called for
Oral Argument, so as not to leave any doubt that there
might be room to entertain and dispose of the SJS
Petition on the merits.
Counsel for SJS has utterly failed, however, to convince
the Court that there are enough factual and legal bases
to resolve the paramount issue. It failed to state directly
the ultimate facts that it relied upon for its claim.
Neither were there factual findings in the assailed
Decision. At best, SJS merely asked the trial court to
answer a hypothetical question. In effect, it merely
sought an advisory opinion, the rendition of which was
beyond the court’s constitutional mandate and
jurisdiction.
Indeed, the assailed Decision was rendered in clear
violation of the Constitution, because it made no
findings of facts and final disposition. Hence, it is void
and deemed legally inexistent. Consequently, there is
nothing for this Court to review, affirm, reverse or even
just modify.
Regrettably, it is not legally possible for the Court to take
up, on the merits, the paramount question involving a
constitutional principle. It is a time-honored rule that
"the constitutionality of a statute [or act] will be passed
upon only if, and to the extent that, it is directly and
necessarily involved in a justiciable controversy and is
essential to the protection of the rights of the parties
concerned."
MARCELINO ARIAS vs. UP BOARD of REGENTS
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consti 2 all stars 16