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Constitutional Law I
University of Alabama School of Law
Fair, Bryan

Religion and the Constitution

i. 1st Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”
ii. There is on-going tension between the Establishment Clause and the Free Exercise Clause
i. The Establishment Clause may bar government support for religion and religious institutions, but denial of public welfare benefits and services, especially in the modern welfare state, may impose undue hardships on religion contrary to the Free Exercise Clause. (Everson)
ii. Allowing and exemption from generally applicable laws that burden a particular religion promotes free exercise but providing these exemptions presents problems of government supported religion contrary to the Establishment Clause. (Yoder and DHR)

I. The Establishment Clause

1. Everson v. Board of Education (1947)
i. Topic: Meaning of the Establishment Clause
ii. Specific Rule: A state may use public funds to assist student transportation to parochial as well as public schools. “The First Amendment requires the state to be neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary”—Black
iii. Facts: NJ statute gave local school board the authority to allow reimbursements to parents for money spent for bus transportation for their kids. Some of these reimbursements went to kids attending Catholic schools.
iv. Constitutional Issue: Whether such reimbursements violate the Establishment Clause of the 1st Amendment
v. Holding: No, the state can extend benefits of general welfare to all children, and cannot exclude person because of religious belief or lack thereof. “We cannot say that the First Amendment prohibits NJ from spending tax-raised funds to pay the bus fares of parochial school students as part of a general program under which it pays the fares of pupils attending public and other schools.” –Black
1. Majority: “The ‘Establishment’ Clause of the First Amendment means at least this: Neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance.” No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal government can, openly or secretly, participate in the affairs of any religious organizations or groups. In the words of Jefferson, the clause against establishment of religion was intended to erect ‘a wall of separation between church and state.’”—Black
a. Free Exercise Language: To deny aid to those who send kids to religious schools would hamper citizens in the free exercise of their own religion; the FEC requires that a state “cannot exclude individuals…because of their faith, or lack of it, from receiving the benefits of public welfare legislation.
b. Neutrality: Majority sees this as a case regarding neutral, general welfare benefits exten

nded the Establishment Clause
v. Holding: Yes, the counties’ purpose was not secular and purpose did not change with the succession of displays
1. “When government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality.”
2. “The reasonable observer could only think that the Counties meant to emphasize and celebrate the Commandments’ religious message.”
3. “Purpose needs to be taken seriously under the Establishment Clause and needs to be understood in light of context.”
4. Lemon test was upheld
vi. Dissent: “historical practices thus demonstrate that there is a distance between the acknowledgment of a single Creator and the establishment of a religion.” A reasonable observer would not have been aware of resolutions behind display.
1. Establishment Clause does not prevent government from favoring religion.

4. Van Order v. Perry (2005)
i. Topic: Whether display of ten commandments on state capital grounds was prohibited by Establishment clause
ii. Specific Rule: “Simply having a religious context or promoting a message consistent with a religious doctrine does not run afoul of Establishment Clause.”
Difference between acknowledgement of religion in America’s history and imposition of religion on its citizens.