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I.

Religion in Schools
A. Prayer/Bible in the Classroom
1. Engel v. Vitale, 1962, Black`
a. Facts: NY school board composes prayer to be said every morning in class: Almighty God,
we acknowledge our dependence upon Thee and we beg They Blessings upon us, our parents,
our teachers and our Country.
b. Holding: Establishment clause means at least that govt cannot compose official prayers as
part of a religious program carried on by government
i. History shows dangers of union of church and state book of common prayer
ii. No compulsion needed to show establishment, just enactment of law
iii. Madisonian arguments govt bad for religion and religion bad for govt
- Also, take alarm at first experiment on our liberties
c. Dissent, Stewart: No coercion, simply letting people say prayer. Establishment means
classical establishment. Govt prays all the time! We are a religious people (Zorach).
d. What differentiates school officials and got chaplains?
i. Parents vs. schools
ii. Everyday indoctrination, impressionable kids
e. Black leaves open opportunities to historical anthems including composers expression of
faith. Is he drawing a line, defining prayer?
2. Abington v. Schempp, 1963, Clark
a. Facts: State statutes requiring bible reading every morning without comment. Students may
be excused. Student reading may choose version. Followed by recitation of the Lords
Prayer.
b. Rule:
i. 1) Purpose of the enactment must not be to advance or inhibit religion; and
ii. 2) Primary effect must not be to advance or inhibit religion
c. Holding: The exercise has a pervasively religious character
i. Even if purpose is not strictly religious, method of accomplishing purpose is religious
ii. Religious character evidence in letting students choose version
iii. Allowing for free exercise does not mean state can facilitate religious exercise
iv. This decision does not impose a religion of secularism because a religion of
secularism is hostility toward religion. Neutrality is being asked for.
d. Brennan, concurrence: Excusal does not resolve free exercise still public expression of
belief. Any version of Bible is sectarian.
3. Wallace v. Jaffree, 1985, Stevens
a. Facts: Enactment added words or voluntary prayer to statute allowing silent meditation.
Also added choice for teacher to lead willing in composed prayer (obviously thrown out).
b. Holding: or voluntary prayer violates establishment clause
i. Abington test: No secular purpose identified that was not served by meditation clause
ii. Legislative history shows prayer in classroom was intended
iii. Endorsement test: adding prayer conveys a message that the state approves of
prayer in the classroom.
c. OConnor, concurrence: Meditation is not prayer (splitting hairs?). Adding word prayer
evinces religious purpose.
d. Is neutrality anything but religion?
e. How one frames enactments matters in determining purpose!
4. Questions left open:
a. What if religion is normal part of conversation in that community?
i. Religious privacy
ii. Rights of parents
iii. School shouldnt be affirming/denying religion
b. Teacher free speech rights?

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c. Bible and Literature?


d. Remember: Classroom context is special. Extra-sensitive to indoctrination claims.
e. Can Students choose to read Bible aloud?
f. Students free to pray in school-yard?
g. What about viewpoint bias in study of religion classes?
B. Creationism Controversy
1. Epperson v. Arkansas, 1968
a. Facts: 1928, AK adopts anti-evolution statute. Product of fundamentalist fervor. Makes it
unlawful for teachers to teach evolution. Only AK and MI still have monkey laws.
b. Holding: unconst. because it proscribes a set of knowledge solely because it conflicts with a
particular religious doctrine
i. Government must be neutral
ii. McCollum struck down release time statute using school buildings for religious
teaching
iii. No justification other than religious views of states citizens/representatives
iv. The fact that so few other states have such laws weighs against existence of public
policy concern
c. Blacks concurrence: should only be struck down for vagueness. No establishment. What
about religious freedom of those who do not see it as scientific but as anti-religious?
Teachers free speech. Parents rights to set curriculum.
d. Is neutrality a farce? Proponents of religion feel that anti-religion can be suppressed. But, is
this just science vs. one particular view of science?
2. Sex-ed hypo:
a. people offended for religious reasons and ban it?
b. If state were silence on all things that touch religion, little could be taught.
3. Edwards v. Aguillard, 1987, Brennan
a. Facts: La. passes balanced treatment for creation-science and evolution act - must teach
facts for each side equally or not teach it at all.
b. Rule: Lemon test: Secular purpose, neutral primary effect, no excessive entanglement
c. Holding: Primary purpose is to endorse a particular religious doctrine.
i. Elementary and secondary school students are very impressionable stricter scrutiny
of act
ii. No academic freedom science education not helped by forcing teaching of
creationism or not teaching evolution. Sen. Keith said: my goal is that neither is
taught. How is that pro-education? Teachers already have flexibility to teach what
they want.
- Different def. of academic freedom???
iii. Fairness not furthered protects only creationists from discrimination
iv. We need not be blind to religious purpose of legislature. Sen Keith made it clear
evolution is against is religious views.
d. Powell, Concurrence: really hinges on purpose. Here, purpose not secular. Creationism is a
single sects interpretation.
e. Scalia, Dissent: No substantial legislative history to judge purpose. Keiths remarks are not
legislatures feelings. Text said academic freedom why argue? Also, academic freedom
means for kids, not teachers. Construe to save, not destroy. Protect creationists because they
are the ones persecuted.
4. Freiler v. Tangipahoa, 5th Cir. 1999 - Anti-evolution disclaimers struck down as having religious
purpose
5. Hypo: Texas history curriculum
a. Balance problem?
b. Distinguished because not religion v. science?
6. Kitzmiller v. Dover School Dist., M.D. Penn. 2005

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a. Facts: Evolution disclaimer reference book Of pandas and people


b. ID is note science: supernatural causation. It is like creation science irreducible complexity
leads to God. No basis in scientific community
c. Objective observers would know that ID theory/gaps in evolution are of creationist, religious
origins (nativity display cases?)
7. What is the alternative? Not teaching? Private school, homeschool?
C. Prayer at Graduation
1. Arguments distinguishing from classroom:
a. Not everyday
b. Not compulsory to attend
c. Solemn occasion
2. Lee v. Weisman, 1992, Kennedy
a. Facts: High School invites local clergy to pray at graduation. Very generic prayer.
b. Holding: prayer violates establishment clause
i. That government may accommodate under free exercise does not mean it can sponsor
ii. Potential for divisiveness overt religious exercise
iii. Principal gives guidebook like government composing prayer!
iv. Students forced to support being respectful. Social/psychological coercion.
c. Scalia, dissent: No history, we are not qualified to do psychology. Standing or sitting as
joining? Not a real composition of prayer. What about pledge? High school grads not
impressionable children. No legal coercion.
d. Subtly retreats from school prayer cases requires coercion.
e. Kennedy does not use lemon test. What would outcome under Lemon be?
i. Secular purpose community unification? Other ways to achieve?
ii. Primary effect How does one find this? Framing issue?
iii. Excessive entanglement selection process? guidebook?
f. Kennedy stresses coercion... does it do anything?
g. Under OConnor endorsement test acknowledgement v. endorsement
i. Endorsement sends message that communicates some are insiders and others are
outsiders
ii. Acknowledgement recognizes religion without favoring or disfavoring adherents of
other religions
iii. Reasonable observers view as either endorsement or acknowledgement
iv. Atheists?
3. Hypo: What if student composes prayer during speech?
a. Coercion same, but lemon test is completely different no purpose or much entanglement
b. Restricting content? - Denying student chance to say something religion-related seems like
free exercise problem
4. Tanford v. Brand, 7th Cir. 2007
a. Facts: Prayer at public university graduation
b. Holding: Does not violate 1st amend.
i. Distinguished from classroom: Mature audience
ii. Coercion: Many students do not attend
iii. Lemon: Long-standing tradition, serves secular purpose of solemnizing, de minimis
advancement of religion or entanglement
iv. Endorsement: Primary effect does not endorse or approve religion. Also, it is a
simply acknowledgement of religion, as tradition, as under Marsh (Chaplains const.
because of unique history of US).
D. Student-lead prayer in school
1. 5th cir. said graduations ok non-sectarian, non-proselytizing but not football solemnizing
rationale
2. Santa Fe School District v. Doe, 2000, Stevens

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a. Facts: School board permitted graduating senior class by secret ballot, to choose whether
invocation shall be part of graduation and football games. If so, class shall elect students to
deliver non-sectarian, non-proselytizing prayers.
b. Holding: Prayer at football games violates estab. cl.
i. Not private speech in public forum: not open to indiscriminate use, majoritarian
process guarantees only majoritys views
ii. Actual/perceived endorsement: school has not distanced itself from views
- Elections only take place because school lets them vote
- School requires not proselytizing, nonsectarian prayer
- Religious message is obvious way of solemnizing invocation is asking for
divine assistance (cast doubt on solemnizing rationale at all???)
- School-scheduled, school-sponsored event objective observer would see it as
school condoning views of majority
iii. Lemon test, purpose prong: invocation not necessary to solemnize; facts show that
school wanted to preserve tradition of prayer at football games
iv. Coercion: sure, all students not required, but some participants extracurricular
activities are required to be there; even if not coerced to be there, those that do show
up are coerced
c. Rehnquist, Dissent: Not enough facts, had the policy been put into practice, students may
have chosen according to wholly secular criteria like speaking ability
d. Easy to see school origin of prayer in this case, not student origin
3. Hypo: License plates with religious slogan
a. Note forced to have them
b. State has approved plate though, according to secular criteria, but still approved
c. What if someone attributes message to state
4. Hypo: Coach lets team captain pray if he wants
a. Better, but consider history. If it is a way of getting around coachs desire to pray, not good.
b. Coach chooses captain.
c. What if captain elected?
d. What if coach says captain cannot pray?
i. Secular purpose of preventing divisiveness
ii. But, not being neutral?
5. Main question: What structure of control makes state responsible for content of the message?

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II.

Government-sponsored Religious Speech in Other Contexts


A. Legislative Prayer, Holidays, Religious Symbols, and the Pledge
1. What is the need for govt chaplains?
a. Military reasons away from home, special circumstances, need for counseling
b. Legislative reasons away from home, maybe special needs?
c. Even if chaplains exist, should they pray?
2. Marsh v. Chambers, 1983, Burger
a. Facts: Neb. Legislature opens each day with prayer by chaplain paid by state
b. Holding: In historical context, not violation of estab. cl.
i. Opening legislative sessions with prayer is deep tradition
ii. First congress appointed paid chaplains three days after adopting 1st amend.
iii. Chaplains long tenure was due to his performance, not religion
iv. No showing that prayer has been exploited to proselytize, advance, disparage any
faith
c. Brennan, dissent: Absent history, easily unconst. Prayer, unlike mottos and fixed wordings,
can become sectarian.
3. Simpson v. Chesterfield, 4th Cir. 2004 Wiccan prayer denied because it was pre-Christian and
polytheist. Did not coincide with city goals of prayer. Court upheld denial.
a. But, Wynne, 4th Cir. 2004 cannot refer to Jesus or other sectarian symbols
4. Heinrichs v. Bosman, D. Ind. 2005
a. Citizens pray to open legislative session majoritarian (Santa Fe) or diverse?
b. Ecumenical prayer favoritism, divisiveness, composing prayer?
c. Enjoined Christian prayer, then case dismissed by 7th cir on procedural grounds
5. Residual religious culture
a. Keep in mind that plenty of things in culture have religious history but not widespread
religious meaning (San Francisco)
b. To what extent can government connect?
c. Question rises only in 1980s: No one had a problem before; But, the doctrines had only
recently developed
6. Private/Public Forum distinction:
a. Public land, private forum if: selective and attributed to owner of forum.
b. Public/private land, public forum if: park open to public, unattended display, equal access
7. Lynch v. Donnelly, 1984, Burger
a. Facts: Nativity scene owned by city placed in private park next to Santa Clause and other
Christmas figures
b. Holding: In context, celebration of holiday not violation of estab. cl. under Lemon test
i. Secular purpose can exist even if religious symbolism is means of achieving it
ii. Does not advance religion any more than other laws (Sunday closing, grants to church
schools, church tax relief)

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iii. No excessive entanglement less day-to-day interaction than religious paintings in


public museum
c. OConnor, concurrence - Endorsement test 2 prong distillation of lemon test for religious
display cases
i. Whether government intends to convey message of endorsement or disapproval
ii. Whether government practice has the effect of communicating a message of
government endorsement or disapproval
d. Context important in all opinions, but how is context framed?
Allegheny Co. v. ACLU, 1989, Blackmun
a. Creche inside, on grand staircase. Menorah outside by Christmas tree. Disclaimer by
Menorah
b. Holding: Creche impermissibly endorses Christianity under Lynch. Menorah ok.
i. Creche is alone in cherished spot of building
ii. Menorah not super-religious, also not standing alone
c. Reasonable observer is not exactly like reasonable person. It is an omniscient observer who
must reasonably perceive endorsement or not.
d. Hypo Nativity scene and Menorah
McCreary Co. v. ACLU, 2005, Souter
a. Facts: 10 Commandments placed in courthouse. Challenged just as it is being put up there.
Surrounded with documents all documents acknowledge religion in role of formation of
nation
b. Holding: Violates purpose prong of lemon
i. Context - Religious cultural movement trying to promote revisionist history
ii. All thats needed is plausible religious purpose (contra Lynch?)
Van Orden v. Perry, 2005
a. Group Donates 10 commandments structure to Texas. Placed outside with lots of other
monuments. Sat there for 40 years with no protest
b. Plurality upholds Thomas, Rehnquist, Scalia, Kennedy
i. Dispenses with Lemon test
ii. Nature of Monument: Historical meaning, simply having religious content does not
make monument unconst.
iii. Nations History (Lynch standard): 10 commandments in S. Ct.; they represent law
c. Breyer Concurrence (controlling)
i. Pragmatism - establishment clause is there to prevent divisiveness
ii. Physical setting does not suggest the sacred area with other monuments
- 40 years with no challenge - evidently no divisiveness
- There will be protests over removal of Christian symbols
- What is the real harm of 10 commandments?
iii. Not like Stone not in school to inculcate
iv. Not like Allegheny not in prominent place with legislative history suggesting
religion
v. Not like McCreary no religious objectives of state
d. Stevens, Dissent: Decalogue inherently religious
e. Is the real holding: No new monuments but old ones with appropriate history can stay?
Newdow v. US Congress, 9th Cir. 2002
a. Pledge of Allegiance challenged
b. Applies all 3 tests (Lemon, Endorsement, Coercion), strikes down Pledge
c. Fernandez dissent - Not establishing religion
Elk Grove v. Newdow, 2004
a. Dismisses 9th cir. case for lack of standing
b. Rehnquist, concurrence: Prudential standing rule improperly applied; under God not a
religious exercise

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c. OConnor, concurrence: Under Endorsement and Coercion tests not an establishment.


simply ceremonial deismHistory and ubiquity
i. Absence of worship or prayer
ii. Absence of reference to specific religion
iii. Minimal religious context
d. Thomas Federalism interpretation of establishment clause
e. Is OConnors observer a student or a parent?
13. Outline: Merits of a case challenging laws/displays based on religious connection
a. Lemon - Secular & religious purpose (useful for endorsement test) - dual purposes? 3 views:
i. RP is fatal no (criminal/family laws would be repealed)
ii. RP taints law Strict Scrutiny, similar to race discrimination law, shifts burden of
proof.
- No one takes this view either religious purposes not inherently bad like
racism
- No balancing in estab. cl. Cases
iii. Lynch - SP saves it, as long as there is a SP, RP doesnt matter
iv. McCreary co. if RP predominate, unconst.
b. Endorsement test: purpose to endorse, effect of endorsing
i. Through eyes of reasonable, objective, omniscient, observer
ii. Remember, observer aware of historical context
c. In lower courts both lemon and endorsement still good law (by a thread), must incorporate
them both lemon as glossed through endorsement is basic law
d. BUT Kennedy Coercion test in Allegheny/Lee v. Weisman
i. Religious display ok if:
- Non coercive
- Is only flexible accommodation/passive acknowledgement
- Only for existing symbols
- Must not benefit religion in a direct way more substantially than in national
heritage
ii. Real question over coercion Kennedy v Scalia in Lee v. Weisman
iii. Flexible accommodation not really present in display case, but mentioned Salazar
iv. Passive acknowledgement:
- Historical (Marsh): accurate? Or simply a pretext?
- Cultural (Lynch): ok, if secular majoritarian?
- Reverential: Scalia, Thomas, Rehnquist our tradition to show reverence to
God of Abraham. Tied to cultural? - Brennan struggles with this line.
v. Must not benefit existing symbols in novel way what about new religions?
B. Private Religious Speech in the Public Forum
1. Intersection of Free Speech and Freedom of Religion
a. Meaning of religious freedom at founding
i. Liturgical freedom/freedom of worship
ii. Free assembly
iii. Free to prepare and disseminate ones own religious writings
iv. Freedom to proselytize
v. Freedom from compulsion
vi. Parental freedom to direct religious inculcation
vii. Equality of sects
b. Many of these protected by multiple clauses in first amendment
c. Free exercise rights and free speech rights often (mostly? always?) coterminous
d. Religious character does not matter with regard to time/place/manner restrictions or
restrictions on unprotected speech

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e. Public forums
i. Traditional
- Streets, sidewalks, parks, other places where people have been traditionally
free
- Cannot regulate speech except for reasonable, viewpoint-neutral TPM,
unprotected
- No subject-matter regulations
ii. Designated
- TPM, no viewpoint discrimination
- Reasonable content restrictions allowed (___-related only)
iii. Nonpublic fora - once it is not a public forum, government takes responsibility for its
speech
Widmar v. Vincent, 1981, Powell
a. Facts: University told Christian group it could not meet in school buildings. Designated
forum. University denied group because of religious worship subject-matter restriction.
Their reasonable restriction was justified using establishment clause.
b. Rule: Lemon Test
c. Holding: An equal access policy does not violate establishment clause because the primary
effect is not advancing religion. Caveat: in absence of empirical evidence that religious
groups will dominate
i. Open-forum policy clearly has secular purpose and avoids entanglement
ii. Incidental benefits to religious organization do not violate prohibition on
advancement of religion. Factors regarding whether is incidental include 1) no
imprimatur of state approval and 2) Forum is available to broad class of religious or
nonreligious speakers benefits broad spectrum
d. Possibility that commitment of resources would pose problem; however, only building
being given. Building cant be diverted to direct religious service
e. No attribution (like endorsement) nobody attributes political groups ideas to school
Lambs Chapel v. Center Moriches Free School Dist., 1993, White
a. Facts: NY Law lets people use school property for 10 specified purposes when not using as
school. The list does not include religious purposes and NY ct. held that religious groups
could not meet. Group wished to show a film, permission denied because film was churchrelated.
b. Holding: Establishment clause not a defense for denying access. No perceived endorsement,
see incidental factors in Widmar
i. 1) No school sponsorship
ii. 2) An open policy would benefit a wide variety of organizations
iii. New factor: Event would be open to public, not just church members - Perhaps
justifies using public land?
c. In order to avoid viewpoint discrimination allows same topics to be addressed by secular
orgs/speakers?
Bd. of Educ. v. Mergens, 1990 - Upheld law mandating equal access to public forums by any school
receiving federal funds. Establishment clause challenge rejected.
a. Meetings not held during instructional time
b. Did not interfere w/ educational mission of school
c. Not endorsed by school
d. Involved no participation by school officials
e. Held in atmosphere where religious club was one of many
f. No one coerced to attend
Rosenberger v. UVA, 1995 - Religious journal journal/speech still forum allocation of money.
Problem of resources committed to proselytizing. Court rules journal must be funded.

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6. Good News Club - After-school program for elementary school children. Misattribution kids may
think school is sponsoring? Ct. allows Good News Club
7. Bronx Household of Faith, 2d. Cir. 2003 - Good News Club does not mean religious activity cannot
be treated as a distinct type of activity. Though line between worship and speech is blurred.
8. Capital Square Bd. v. Pinette, 1995
a. Facts: Government does not allow KKK to put up cross in capital square along with other
monuments. The state argues it would be an establishment.
b. Plurality, Scalia: Yes, religious expression does not violate establishment clause if: (1) it is
purely private; and (2) it occurs in a traditional or designated public forum, publicly
announced and open to all. Here, we only have incidental benefits, if any.
i. Does not apply endorsement test because there is no government speech
ii. Endorsment really means favoritism anyway: Allegheny grand staircase not open
to all; Lynch crche did not violate because of context
iii. No perceived endorsement erroneous conclusion by reasonable observer do not
count. People familiar with square know it is an open forum used for private speech.
Conflicting opinions are showcased
iv. If it is protected, the fact that it is religious does not matter it is protected speech
only obscenity can be regulated
c. Concurrence, OConnor no need to throw out endorsement test
d. Concurrence, Souter (Narrowest, controlling) endorsement test with disclaimer
e. Even though Souters is probably narrowest, lower courts more often cite the plurality they
like the bright-line rule
f. Scalia argues, convincingly, that not having a bright-line rule will put governments into a
catch-22 free exercise cl. in tension with estab. cl

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g. Display is temporary
Argument strategies - Competing Claims?
a. If P claims access of speech, Govt will say it is nonpublic - Not establishment
b. If P wants removal, Govt will say it is public - Private speech
Pleasant Grove v. Summum, 2009, Alito
a. Facts: Public park contains 15 displays, 11 of which donated by private individuals,
including 10 commandments like those in Van Orden. City rejected Summums application
to erect its own religious monument because it did not directly relate to the history of the city
and Summum did not have longstanding ties to the city.
b. Holding: Not a violation of estab. cl. government cannot be forced to speak
i. Monuments are government speech
ii. Such monuments can be controlled limited space in park
c. Concurrence, Scalia City should not be afraid that monuments violate estab. cl.
d. Concurrence, Souter if estab. cl. becomes an issue, ct should use endorsement
e. The court applied the forum doctrine where the govt property was capable of
accommodating a large number of public speakers. Parks can only contain a limited number
of monuments and still be used for recreation.
f. The display is PERMANENT they will be there (in the way) forever!
g. ACLJ brief like a library! Ct. doesnt buy it. Context of few monuments on public land
different than art collections?
Salazar v. Buono, 2010
a. Remember Summum things on government land is government speech if not a public
forum
b. Exchange between lawyer and Scalia (Jewish cemetery) reasonable observer? Lupu not fan
of endorsement; neither is Alito.
c. Options for avoiding conflict: secularize memorial. No real way to avoid insiders/outsiders
when using religious symbolism.
d. From here: on remand, transfer of land: what to do? Lupu: sign on land! Disclaimers are
interesting way to solve display problems, more info is a good thing.
License plates Hypo:
a. Vanity plates: Must allow competing viewpoints. EC attribution no. Like Pinette
b. Specialty Plates: Some groups are in and others are not based upon certain criteria groups
that discriminate in certain ways are not allowed viewpoint issues. Similar content
restrictions as well. States message like Summum? Or, designated public forum?
Acknowledgement and Accomodation arguments: Justices against endorsement test usually ok with
acknowledgement. Is it accommodation to allow a historical monument with religious undertones to
stand? Acknowledgement is stronger argument than accommodation in display cases, but limits of
acknowledgement has never been defined by the court.

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III.

Financial Support of Religious Entities


A. Everson v. Bd. of Educ. of Ewing, 1947, Black
1. Facts: Busing program applied to all students, even those going to parochial schools.
2. Infamous Estab. cl. means at least this...
3. Holding: Program paying for fares of both public and parochial schools is const.
a. Parents rights to choose school
b. Law neutrally applies
c. State-paid policemen protect all property, even religion ones
d. No money contributed directly to schools (implies that would be unconst.)
4. Jackson is wrong, facts do not suggest religious discrimination. Thats a really different case!
5. States cannot ban religious education, but not required to subsidize (CLS v. Martinez)
6. Direct/Indirect distinction common reading of Everson
a. Direct advancing educational mission means advancing religious mission.
b. Indirect protecting public health and safety.
B. Allen Local bd approves books, buy them. Secular books. Loaned them to students. Loaned to parents,
not schools, even though schools would hold on to them over summers. Attempt to make aid appear
indirect. Upheld as indirect aid to the secular educational mission. Approval process could be gamed
excessive entanglement?
C. Lemon v. Kurtzman, 1971
1. Facts: pays teachers/schools for secular education
2. Formation of Lemon test Secular purpose (Abington, Primary effect not to inhibit or advance
religion (Abington), No excessive entanglement of religion (Walz)
3. Holding: unconst. because of excessive entanglement
a. Getting kids to school is valid secular purpose
b. Primary effect prong not addressed
c. Effective enforcement would require monitoring to make sure money and teachers used only
for secular education
d. Without monitoring, primary effect would/could be to promote religion
e. Political divisiveness? (not mentioned much in later cases)
D. Lupu Lemon Test:
1. In financial aid cases, primary effect and excessive entanglement are really the contentious issues.
Secular purpose often stipulated.
2. Not clear whether secular purpose must outweigh religious or whether existence of a secular purpose
makes statute per se valid. Cant be a pretext McCreary
3. Primary effect cannot be to advance or inhibit religion. Inhibit free exercise problem? Probably
not useful to get around Smith thus, doesnt do any work
E. Tilton and Richardson - colleges can receive money a long as theyre not pervasively sectarian. no reverter
clauses (secular use for 20 years, then whatever)
F. Direct/Indirect financing (Everson)
1. Direct - Aguilar, 1985 overturned by Agostini, 1997, Public employees providing on site teaching
2. Indirect
a. Nyquist, 1973 tax credits for school tuition struck down
b. Mueller (tax deduction for private school tuition), Witters (scholarship for religious training),
Zobrest (state sign language interpreter used in religious school) all upheld
G. Mitchell v. Helms, 2000
1. Facts: Federal program loans educational material to religious schools
a. Prof: That its a fed program matters because demography changes much smaller
proportion going to specific religion or religion at all compare to 60s most catholic
2. Plurality, Thomas: Secular purpose and neutral distribution is all that matters

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a. Indirect financing - Once money is handed over, no more state action


b. In order to be indirect, private choice, money must pass through the hands of
parents/beneficiaries
c. Old pervasively sectarian characterization is anti-catholic
3. OConnor/Breyer opinion, controlling
a. Pervasively sectarian rule from Tilton/Richardson not mentioned! Prof: implicitly
repudiating?
b. Private choice does not matter is government responsible for inculcation of religious
values? If so, then violates establishment. It is direct aid, regardless of whose hands it passes
through.
c. If there has to be monitoring to ensure materials only used for secular purposes, the
monitoring is ok. We can trust that teachers will comply.
H. Zelman v. Simmons-Harris, 2002, Rehnquist
1. Facts: Tuition vouchers for private schools to poor parents.
2. Holding: Upheld because it money is diverted via private choice and it is neutrally distributed
a. Choice - No government action is pushing, nudging, driving people to religious schools
i. Range of choices has to be adequate. Doesnt just look at private schools looks at
all schools, private and public.
b. Neutral - No discrimination, including on religion, in program among students
3. Prof: Like government salary no connection to spending. Voucher has structure connection,
better question is, did govt create incentive to go to religion?
4. Ways to expand range of choice in order to avoid incentivizing religion: Force suburban public
schools to participate, give more money more schools will participate, Voucher students can opt
out of religious parts of private school religious practices (Milwaukee method, Lupus fave)
I. Overview:
1. Direct aid (Mitchell concurrence) Lemon modified, weak. No direct aid.
2. Indirect (Zelman) beneficiaries choice. 1) Religion-neutral structure. 2) Genuine choice.
J. Freedom From Religion Foundation v. McCallum, 7th Cir. 2003
1. Facts: Faith Works Milwaukee residential program for substance abuse. Self-proclaimed Faithintensive program. More than AA, it was evangelical. Money given to program from state
employment department welfare program to accept welfare-accepting patients. No conditions on
payments.
2. First case: Unconstitutional direct payments, no conditions for only secular use. Even if only
paying for secular half, its interwoven cant separate money.
3. Second case: Const.: Choice between jail and any substance abuse program. Beneficiaries choose
FWM State will pay for program (Posner)
a. Only needs equal opportunity and real choice
b. Does not need to pass through hands of beneficiary
c. If religious one is best, does not mean that we need religious one to get worst

IV.

Tax-Payer Standing
A. Flast, 1968 exception for establishment clause cases
B. Valley Forge Christian narrows, only legislative spending
C. Hein again, only legislative spending, does not matter that congress made money available to executive
D. Winn, 9th Cir. 2010

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V.

Free Exercise
A. Basic Principles
1. Obvious overlap between establishment and free exercise
a. Strong establishments will suppress free exercise
b. However, free exercise clause is there for a reason!
i. England: free exercise and establishment
ii. Secular society: no establishment and no free exercise
iii. America: no establishment and free exercise
c. Recall Lupus elements of religious freedom - Free exercise will do some distinctive work
2. Reynolds v. US, 1879
a. Facts: Reynolds is a mormon polygamist, charged with polygamy. Claimed religious
privilege
b. Holding: Government cannot interfere with mere belief and opinion, but may interfere with
practices.
i. Jefferson said so Virginia tradition
ii. Polygamy historically banned
iii. Human sacrifice analogy (counter: consent?)
iv. Regina v. Wagstaff allowed parents to let child die without seeing doctor but that
was negative act, not positive
c. Most often cited for belief/action distinction (Smith)
i. This distinction makes free exercise practically useless
ii. Unless excluded middle: coterminous with other rights
3. Cantwell v. Connecticut, 1940 JW playing phonograph
4. McDaniel v. Paty, 1978
a. Facts: statute barring clergy from holding office
b. Holding: Law deprived McDaniel of first amendment rights of free exercise
i. Law not useful for original purpose; no rational basis for discrimination
ii. Madison: such laws punish those in religious profession with deprivation of rights
iii. Witherspoon: it makes no sense that one can hold office after being rejected as unfit
for clergy but not while one is a respectable clergyman
c. Brennan, concurrence: establishment clause not only not a defense, it actively prohibits such
legislation
d. Exclusion/discrimination case equal protection
5. In the beginning, free exercise tied to other rights free speech, free association
B. Mandatory accommodation - Religious privilege/exemption or religious discrimination?
1. Sherbert v. Verner, 1963, Brennan
a. Facts: 7th-day Adventist fired because she refused to work on Saturday. Applied for
unemployment. Denied because she could work, but made personal choice not to.
b. Rule: Free exercise must be accommodated if:
i. 1 Reason for exemption request is religious
ii. 2 There is a substantial burden is placed on free exercise of that religion.
iii. 3 Compelling state interest does not outweigh the interest of free exercise rights.
Only gravest abuses, endangering paramount interest give occasion for permissible
limitation. If compelling interest exists, must use least restrictive means.

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c. Holding: Yes burden, no compelling interest outweighing. State cannot condition benefits so
as to constrain a worker to abandon religious convictions respecting a day of rest.
i. Burden - It may be indirect, but the purpose and effect matters indirect effect is just
as bad. Pressure upon her to forego her religious convictions. Speiser v. Randall
does not work to say benefits are a privilege. Granting of benefits may not be used to
deter free exercise. There does appear to be burdensome discrimination the statute
excuses Sunday worshippers.
ii. No Compelling Interest - Interest in preventing fraudulent claims is not considered
because state did not bring up this argument to state supreme court. Also, narrowly
tailored legislation can prevent fraudulent claims. Unlike Braunfeld v. Brown state
had an interest in choosing one day for rest. It did so by selecting majority Christian
day of rest. Simply made other faiths more expensive, but secular purpose could not
have been performed another way.
iii. Exemptions are not establishing religion simply enforcing government neutrality in
the face of religious differences
d. Stewart, concurrence: Concur because free exercise demands positive protection,
establishment clause read too broadly. There seems to be a conflict between establishment
clause and free exercise clause jurisprudence
e. Harlan, Dissent: Regardless of whether it was religious, it was still a personal reason. This
overrules braufeld v. brown. Forces court to figure out whether behavior is religiously
motivated. Const. allows state to provide and define religious exemption or not.
f. Coercion more evident in Reynolds! Still, court finds coercive burden in disqualification.
Change?
g. Is it about privilege? Or discrimination? - Is it like Paty? Going back, the court does mention
that Sunday privilege exists and not others.
2. Versions of coercion understanding Sherbert v. Verner
a. 1 burden on religious practice personal reasons
b. 2 - secular causes privileged over analogous religious causes- working on certain days
preferred over working on other days - compelling interest
c. 3 sectarian discrimination other exemptions
3. Thomas v. Rev. Bd. of Ind. Employment, 1981, Burger
a. Facts: Thomas left his job when he was reassigned from materials production to actual
weapons production. As a JW, he did not think weapons production was moral. He took a
stricter interpretation of JW scripture than his coworker. Denied unemployment benefits.
b. Holding: Religious, burden, and no compelling interest. Violates FE cl.
i. Testimony crucial in deciding whether it is religious belief. Specific articulation does
not matter. Intrafaith disagreement does not concern ct.
ii. Burden because choice forced between fidelity to religious belief or cessation of
work.
iii. No compelling interest/least restrictive means. No evidence that bad situation might
result from exemptions.
iv. No establishment simply accommodation under Verner
c. Can free exercise clause be construed to protect moral conscience? (Seeger)
d. How is it different than Sherbert?
4. Wisconsin v. Yoder, 1972, Burger
a. Facts: Didnt want to send kids to high school. Wanted them to learn Amish ways at home.
b. Rule: Sherbert v. Verner test
c. Holding: Religious, burden, and no compelling interest. Violates FE
i. Religious, not person preference: Yes, belief in pulling kids from high school is a
deep religious conviction, shared by organized group, and intimately related to
daily living. Historical way of life. Expert testimony/Evidence of sustained faith.

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5.

6.

7.

8.

ii. Burden exists: Even if its on conduct not belief (contra Reynolds?). Uniformity does
not prevent burden if it unduly burdens.
iii. No Compelling interest: Amish sufficiently prepare their children for life. Amish
have been a successful social unit. There is social value to having groups who
seclude themselves from society. Amish children still receiving vocational education.
No evidence that Amish children are being exploited.
iv. Addressing dissents concerns: Holding does not bear on the situation where parent
and child have conflicting interest. State has no right to direct childs religious
upbringing. Strong presumption in favor of parents right to direct childs education
(Pierce).
d. Dissent, Douglas: Liberty of children? Religion is an individual experience (this is western
bias!). Parents are holding kids back from experiencing world. The law and order record of
the Amish is irrelevant.
e. In Yoder, Court seems to use version 1 of Verner
f. Courts are not buying that secular humanism is a religion
g. Exemptions from secular criteria usually lose: Not a substantial burden, Compelling interest.
h. Yoder, is a very narrow, as-applied decision
Formulation of accommodation cases:
a. Trigger: Substantial burden on religious practice
i. Definition of religion tax exempt status. Argument by analogy. Sincerity in
religious beliefs the more material incentives, the more skeptical about sincerity.
ii. Burden choice between x and faith suffices as burden
b. Test - non-exemption necessary to compelling state interest
c. In early 80s, trigger part nuanced, test is weakened
d. Steady erosion toward Smith
US v. Lee, 1982, Burger
a. Facts: Amish carpenter failed to file social security tax returns for employees
b. Holding: paying taxes and receiving benefits is religious burden, but there exists a
compelling interest in social security
i. There is already an exception for self-employed people
ii. Mandatory participation is indispensable to the fiscal vitality of the s.s. system
iii. There is no pricinpled way to distinguish between general taxes and those imposed
under s.s. (tax, not a penalty)
iv. Tax system could not function if religious groups could object to spending of money
c. Self-employed exemption only applies to religions in existence before 1950s const.
problems?
d. Is uniformity really what the case is about s.s. is earmarked
e. Compelling interest test is weakened it is met, but in a weak way
Bob Jones University v. US, 1983, Burger
a. Facts: BJU prohibits interracial dating
b. Holding: Loss of 501c3 status is huge religious burden, but state has a compelling interest in
prohibiting racial discrimination
c. No discussion of strict as-applied exemption test further weakened
Goldman v. Weinberger, 1986, Rehnquist
a. Facts: Goldman not allowed to wear his yarmulke on military base because it is not part of
uniform
b. Holding: Regulations challenged reasonably and evenhandedly regulate dress in the interest
of the militarys interest for uniformity. Court must give great deference to the military, even
when regs challenged on first amendment grounds.
i. Professional judgment of air force is that standardized uniforms encourage
subordination or identity in favor of the group only ranks matter

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ii. Military life may be more objectionable, but first amendment does not require
military to accommodate
c. Concurrence, Stevens: Uniformity is good because it means uniform, equal treatment for all
members. Exceptions would require valuation how far do the exceptions go?
d. Brennan, Dissent: Decision effectively bars orthodox jews from fulfilling religious duty.
Military must state a specific reason for uniformity, not just state that they want uniformity.
Will uniformity be lost by a yarmulke? Current exceptions allow non-visible religious things
doesnt this discriminate against religions that wear visible things?
e. Special enclave special concerns, OLone prison special too
f. Dominant culture concerns
9. Lyng v. Northwest Indian Cemetery Protective Assoc., 1988, OConnor
a. Facts: govt wants to permit harvesting and construct a road through a portion of national
forest that has been traditionally used for religious purposes by three native American tribes.
b. Holding: No substantial burden because no coercion to violate or penalty for not violating
religious belief
i. Bowen v. Roy, 1986: Mother did not want daughter to be given social security
number. Ct. ruled that FE clause could not be understood to require govt to conduct
its internal affairs in ways which comport with religious beliefs of particular citizens.
ii. Cannot weigh the centrality of religious belief or its objective nature that would
require determining truth of underlying religious beliefs
iii. The crucial word is prohibit the FE clause is written in terms of what govt cannot
do to individual, not what individual can command government to do. It is
government land! Government could not function if it tried to satisfy all citizens
beliefs!
iv. Under Yoder, accommodation only required when the statute is coercive in nature.
c. Dissent, Brennan: If religious groups show centrality, and that govt action will prevent such a
central practice, it will be a substantial burden regardless of the nature of coercion.
Slippery slope of exceptions not before the court today.
d. Public land is it really an internal govt affair? Lupu: easement on land?
10. Employment Division v. Smith, 1990, Scalia
a. Facts: Unemployment comp not granted to Smith. Fired from drug rehab because he smoked
Peyote on his own time.
b. Holding: The 3-part Sherbert test is inapplicable to challenges against generally applicable,
neutral laws. FE does not grant a privilege.
i. A permissible reading of the text is that FE clause prohibits taxes enabled with the
object of preventing FE. However, such a reading does not prevent the govt from
enacting a tax that might have the incidental effect.
ii. Yoder is about parental rights (Pierce, etc.) Hybrid rights
iii. Sherbert/Thomas unavailable for work without good cause. Those cases have
nothing to do with across-the-board criminal prohibition
c. OConnor, concurrence: Rejects courts reasoning. Exercise is tied to action.
d. Not limited to criminal law, civil law violations face same fate
e. More restrictive than Reynolds? At least Reynolds alludes to peace and good order as a
prerequisite to general applicability stricter?
f. After Smith, State constitutions appealed to, state legislation, and RFRA passed
g. Is Smith Correct? Line drawing. Smaller govt at founding.
h. Did Smith just confirm what the law was or did it make a difference? Some cases that would
have bee`n uncertain are now dead-losers.
i. Lower courts did not let hybrid claims expand religion clauses
j. SYT required determination of substantial burden perhaps killed Smith
11. Lukumi Babalu v. Hialeah, 1993, Kennedy
a. Facts: Santeria religion practices animal sacrifice. City outlaws cruel killing of animals.

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b. Rule: A law that is not generally applicable or neutral toward religion must meet compelling
interest/least restrictive means standard
c. Holding: Not neutral, not generally applicable ordinances do not survive strict scrutiny
standard
i. Not neutral - the ordinances had as their object the suppression of religion. The
ordinances targeted the central element of Santeria worship. Use of words sacrifice
and ritual in statute.
ii. Not generally applicable because they are underinclusive they only achieve govts
stated interest as against religious conduct. In effect, the statutes only really punish
Santeria. Exemptions for kosher slaughter. Exemptions for small food
establishments. Smith noted that, when exemptions are available, govt may not
refuse exemption for religion without compelling reason.
iii. Statutes ban unnecessary killing atty general admitted that religious killing is
classified as unnecessary. Government deciding religion is unnecessary!
iv. Do not meet strict scrutiny - Overbroad they prohibit Santeria sacrifices even if
carried out in a sanitary manner.
d. Notice that post-smith, Lukumi test does not include substantial burden is it because this
is a religious question? What about disputes over property? General rule: Courts should
defer to internal decision-making body, if it is a hierarchical church. If courts can find
neutral principles of law, it can help them resolve dispute.
e. Lukumi interpretations of Smith: Does one exemption means religion require exemption or
compelling interest? Or, do exemptions show non-neutrality, but one exemption is not
dispositive?
12. Christian Legal Society v. Martinez not FE case, but FE undertones
a. Might have been a test of what is and isnt a neutral rule but wasnt lawyered that way
b. All-comers was definitely a neutral rule, but what about written rule?
c. No showing of impact on religious freedom
C. Permissible statutory Accommodation
1. City of Boerne v. Flores, 1997, Kennedy
a. Facts: RFRA requires all federal government and state governments to follow pre-smith SYT
FE test. Justified under 14th amend.s enforcement power.
b. Holding: RFRA struck down. 14th amend.s enforcement power is remedial. Ct demands
congruence and proportionality to documented harm.
2. Gonzales v. O Espirita Beneficiente Uniao Do Vegetal, 2006, Roberts
a. Facts: Drug case - RFRA applied to Fed govt. District ct found evidence of dangers of drug
use in equipoise. Feds do not even challenge const. of RFRA.
b. Ct simply has to apply RFRA, no general applicability test from Smith.
c. Still might be subject to state drug laws, but exempted from federal ones.
3. RFRAs probably not seperation of powers problem. Simply modifies congresss bills enacted
through art. I powers. Using supreme cts old test does not mean congress is usurping power.
4. State RFRAs: Lund article - State RFRAs ignored. Establishment clause problem? neutrality
between religion and non-religion religious privilege? Conflict between the clauses? Room in
between? Imposition on third-parties?
5. Estate of Thornton v. Caldor, 1985, Burger
a. Facts: Civil Rights Act demands reasonable accommodation. This law went further:
Connecticut law did not allow any employer to fire an employee for not showing up to work
on the employees chosen Sabbath.
b. Rule: applied Lemon test
c. Holding: Statute goes beyond incidental or remote effect of advancing religion its primary
effect is advancing a particular religious practice. Violates EC
i. The statute arms Sabbath-observers with an unqualified and absolute right not to work
on that day

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ii. Imposes on business a duty to conform to religious practices of employees


iii. No exceptions:There is no exception for special circumstances. No exception for
financial ability of employer to accommodate. No consideration as to whether
employer has tried to accommodate.
iv. Violates neutrality by forcing others to conform to certain religious sensibilities
(Learned Hand)
d. OConnor, Concurrence: Impermissible effect because it conveys message of endorsement.
Anti-discrimination law has a valid secular purpose- but this law gives a privilege to religion.
e. Forces private party to bear burden. Privately created burden. Simply transfers burden. Free
exercise especially does not require private accommodation to government burdens.
6. LDS Church v. Amos, 1987, White
a. Facts: 702 of Civil Rights Act exempts religious orgs from title VIIs prohibition against
employment discrimination of the basis of religion. Mayson fired from gym because he was
not a member of LDS church.
b. Rule: Lemon test
c. Holding: exemption does not violate EC
i. Secular Purpose - It is a permissible legislative purpose to alleviate significant
governmental burdens. It is a significant burden to force a religious organization to
predict which of its activities a secular court might consider religious. Congress
purpose was to minimize government interference in the decision-making process of
religions.
ii. No entanglement it effectuates a more complete separation!
iii. No advancement of religion by government.
- Its true that religious groups have been more able to advance their purposes,
but a law is not unconst. merely because it allows churches to advance
religion
- No evidence that churches will use this advantage in the profit-making world
- Distinguishes Caldor Conn. law gave sabbatarians force of law. Here, govt
merely allowing church to fire, not giving church force of law. govt/private
action distinction no legal obligation.
- That 702 singles out religious orgs is ok government is allowed to alleviate
a significant govt burden on religion
- No equal protection argument does not discriminate on religion, simply
alleviates a burden placed on religions
d. Brennan, concurrence: exemption should be for any nonprofit; otherwise, state deciding what
is religious and what isnt
e. OConnor, concurrence: lemon test is problem: effect does advance religion, but that in itself
is not a problem. Endorsement is problem. Exemption for for-profit religious orgs remains
open const. question.
f. Distinct from Caldor:
i. Government imposing burden
ii. Sect-neutral exemption
iii. Organizations are free to only hire people with consonant views exception in title
VII simply allows religions to do that.
g. In Amos, CRA exception is to only religious discrimination in regards to ALL employees
h. Ministerial exception to all employment discrimination law provisions for ministerial
employees: Applies when duties are primarily religious and involve communicating the faith.
Application of employment laws would mean deciding a religious question.
i. EEOC v. Catholic University, D.C. Cir. ministerial exception survives Smith: Rests
on ec and fec
ii. Even Smith says courts should not decide religious questions

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7. Caldor/Amos test:
a. Is there a government burden on religious freedom? Accommodation is dependent upon
relieving a burden, not sponsoring preference.
b. govt merely allowing church to fire, not giving church force of law.
c. Sect-neutral?
8. RLUIPA
a. Prisoner section of RLUIPA responding to OLone v. Shabazz great deference to prison
officials, allows even religious-specific rules
b. General Rule:
i. Substantial burden on religion
ii. Compelling interest/least restrictive means
c. Const. of land use not test by s. ct. but other cts rejected such challenges
9. Cutter v. Wilkinson, 2005, Ginsburg
a. Facts: congress held 3 years of hearing finding that frivolous or arbitrary barriers impeded
institutionalized persons.
b. Holding: There is room between the joints of the religion clauses. Compare Smith with
Amos. RLUIPA fits within the corridor between the clauses.
i. Const. because it alleviates government created burdens
ii. Prescriptions are neutral among different faiths
iii. Prisoners are dependent upon government permission to do things
iv. Statutory response to Goldman accommodation of religious apparel
v. RLUIPA does not elevate accommodation over safety: Distinguishes Caldor. Context
matters in statute application. Mindful of effects on prisoners/guards, security of
prison, and the fact they are prisoners.
vi. Amos religious accommodations need not come packaged with benefits to secular
entities.
c. Lupu: In order to justify religious accommodation, religious liberty must be substantially
burdened as in Prisons.
d. Minimize religious privilege by making religious accommodations available to the
nonreligious, if possible
10. Const. of RLUIPA land use not test by s. ct. but other cts rejected such challenges
a. Issue 1: typically, whether forcing church to spend more money is a substantial burden
b. Issue 2: Compelling interest third party interest (neighbors) and interest of city (taxes)?
Least restrictive means (regulate size)?
c. In essence, who should give? All about trade-offs

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VI.

Intro/History
A. All human organizations feel need for a particular policy on religion
1. Establishment
a. Character of the state
2. Exercise
3. Why?
a. Rival to state
b. Potential partner
c. Produces culture
i. loyalties
ii. Produces norms
4. First assignments show narrative of religion policies in the US
B. Classic establishment
1. Church of England strong-form establishment
a. direct government control over appt of clergy
b. bishops in house of lords
c. parliament approved articles of faith and book of common prayer
d. Religion tests for all important offices
i. Colonies also had this requirement, though a looser version
e. Mandatory church attendance - fines
C. Articles of Confederation had a weak policy
1. Mutual defense pact state attacked for any reason religion mentioned as example 1
D. Varied range of religion policies as of 1780s

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E.

F.

G.

H.
I.

1. Some New England states had multiple establishments


a. Every town chose a church
b. One could individually donate to a church of ones choosing, providing it was an approved
type of church
2. Virginia historically had a singular Anglican establishment
3. None in Rhode Island or Pennsylvania or Maryland
Virginia story
1. After revolution, Church of England affiliation was lost
2. 1780s, Patrick Henry wants to reinstate support of church Christian teaching bill
a. multiple establishment system individually designated tax
b. one could pay salaries of chosen minister or pay for building of chosen churches
c. secular purpose of education of morality, peace, general knowledge common point of view
i. then again, it is biased in favor of protestants, the largest portion of community
ii. Protestantism was uncontrovertibly considered good
3. Jefferson, away in France, had previously introduced a bill establishing religious freedom
4. Madison becomes chief opponent of teaching bill writes memorial and remonstrance
a. Some arguments related to first principles rights, theology
i. 1 - Duty to Creator higher than that of civil society. Duty to Creator comes to an
individual by reason and conviction
- inherently enlightenment and individualist view
- Religion wholly exempt from states cognizance separationist view
What about codes that accidentally affect religion
b. Some arguments based on empirical facts slippery slope, past abuses of clergy
c. Recurrent themes nowadays and then:
i. Religion is necessarily voluntary
ii. Equality of sects
iii. State corrupting religion
iv. Civil peace threatened by sectarian rivalry
5. Jeffersons Bill
a. No one coerced to support ministry
b. No one prosecuted by government for their opinions or beliefs
Religious character of US?
1. Not in preamble blessings
2. Oaths, but choice to affirm
3. No religious test for federal office most important!
a. Of course, a religious test could be inflicted by citizens via votes
4. the year of our lord the date of const.
5. 1st amendment
a. first substantive thing said was Reynolds in 1879
b. Bradfield v Roberts 1899 first establishment clause case money to religious hospital no
establishment
Everson all justices agree that the Virginia story is the complete history of first amendment
1. incorporates establishment clause
a. Incororation? Thomas
2. Blacks at least is potentially quite sweeping holidays, tax exemptions, etc?
3. Contributes to lemon test
4. 9 judges agree on history, but do not agree on issue of bus tokens
Rehnquists dissent in Wallace v. Jaffree weve been basing originalist argument on false history
1. Madisons role is overemphasized Madison was a politician at the time of drafting, not philosopher
a. Establishment clause as a peace treaty no one church wins!
Rehnquist unsettles history, but does not resettle - 4 major themes

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1. drafting history
a. House
i. Madisons draft conscience disconnects rights of conscience and religious belief
concerned w/ coercion
ii. Carroll, catholic, really concerned about coercion
iii. touching formulation voted down
b. Senate
i. Votes down non-preferentialist clause, decides that congress shall not establish
articles of worship
c. Is free exercise = to conscience, or broader?
d. Respecting an establishment no drafting history with this phrase
2. 18th and 19th century practice
a. Thanksgiving proclamations, chaplain, money for missionaries
3. 19th century commentary
a. Joseph Story govt can promote Christian good order
4. the second disestablishment (14th amendment, 1868)
a. by the 1830s, state establishments were gone
b. Christian foundations of common law are challenged
c. Significant immigration
d. Freedmen were denied religious freedom by the southern states