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

Religion and the Constitution
1st Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”
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 extended to all parents. “Establishment Clause should promote neutrality, not hostility toward religion.”
2.      Jackson Dissent: “the undertones of the opinion, advocating complete and uncompromising separation of Church and State, seem utterly discordant with its conclusion yielding support to their commingling in educational matters.”
3.      Rutledge Dissent:
a.       “ ‘establishment’ and ‘free exercise’ were correlative and coextensive ideas, representing only different facets of the single great and fundamental freedom”
b.      “Two great drives are constantly in motion to abridge, in the name of education, the complete division of religion and civil authority which our forefathers made. One is to introduce religious education and observances into the public schools. The other, to obtain public funds for the aid and support of various private religious schools. In my opinion, both avenues were closed by the Constitution.”
2.      The Lemon Test (1971)
                          i.      Three Prongs—Burger
1.      secular legislative purpose
2.      Its primary effect must be one that neither advances nor inhibits religion
3.      It must not foster an excessive governmental entanglement with religion
3.      Zelman v. Harris (2002)
                          i.      Topic: Acceptable legislation under the Establishment Clause
                        ii.      Specific Rule: Where a state program provides assistance to a broad class of citizens who (as a 3rd party) direct their money by their own independent choice to religious schools, no constitutional violation takes place under the Establishment Clause.
                      iii.      Facts: Ohio enacted a program which provided financial assistance to families in any school district that had been placed under state supervision. The program provided payment directly to parents for use in sending them to any public or private school that chose to participate. 46/56 schools were religious.
                      iv.      Constitutional Issue: Whether the program offends the EC
                        v.      Holding: No. The private choice of the citizen to use the money prevents the voucher from being government advancement of religion.
1.      Majority: consistent with Everson
a.       Program is neutral with respect to religion
b.      Program had secular purpose. Purpose was to provide better education
c.       Private Choice: Program is one of private choice since payment went to parents and not schools. In essence, a 3rd party intermediary made the decision. The opinion differentiates between this type of aid and aid that goes directly to the school. When this type of transaction occurs, a private actor makes the decision so this type of public allocation used privately insulates the transaction from a constitutional question
d.      Perception: Program did not create perception of direct aid to religion b/c anyone w/knowledge of program would understand it did not endorse religion.
e.       “In sum, the Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice. In keeping with an unbroken line of decisions rejecting challenges to similar programs, we hold that the program does not offend the Establishment Clause.”—Rehnquist
f.       O’Connor Concurrence: “The Court’s opinion in these cases focuses on a narrow question related to the Lemon test: how to apply the primary effects prong in indirect aid cases? ….Courts are instructed to consider two factors: first, whether the program administers aid in a neutral fashion…second, and more important, whether beneficiaries of indirect aid have a genuine choice among religious and nonreligious organizations when determining the organization to which they will direct that aid. If the answer to either query is “no” the program should be struck down under the Establishment Clause.”
g.      Souter Dissent: Looks to the “no tax in any amount” language in Everson to find the program a clear violation and sees the amount of aid flowing to religious schools as indicative of this. Also says that parental choice cannot significantly eliminate the constitutional problem.
4.      Zorach v. Clauson (1952) J. Douglas
1.      Holding: Upheld NYC school district “released time” program that allowed pupils to leave school grounds to “go to religious centers for religious instruction or devotional exercises” and “[a]ll costs … are paid by the religious organizations”
a.       Distinguished McCollum v. Board of Education, which invalidated Illinois’ released time program because “the classrooms were turned over to religious instructors” in violation of the EC
b.      Rejects FE claim because “No one is forced to go to the religious classroom and no religious exercise or instruction is brought to the classrooms of the public schools”
c.       Rejects FE/EC claim of coercion based on “no evidence in the record” but “if it were established that any one or more teachers were using their office to persuade or force students to take the religious instruction, a wholly different case would be presented”
2.      EC Principles:
a.       “Church and State should be separated” and “the separation must be complete and unequivocal”
b.      “The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State.”
c.       Otherwise, many common interactions between Church and State might be unconstitutional, e.g. property taxes on churches, providing police and fire services to churches, legislative prayers, “so help me God,” “God save the United States and this Honorable Court” à “these and all other references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the First Amendment.”
3.      Rationale: “When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe.”
4.      Black dissenting: “New York is manipulating its compulsory education laws to help religious sects get pupils. This is not separation but a combination of Church and State.”
5.      Jackson dissenting: “The distinction attempted between [McCollum] and this is trivial.”
Free Speech Cases
5.      Lamb’s Chapel (1993)
                          i.      Topic: Free Speech/Viewpoint Discrimination
                        ii.      Specific Rule: When a certain content is allowed, exclusion because of a group’s certain viewpoint of that content is viewpoint discrimination and infringes upon free speech.
                      iii.      Facts: School district had opened school facilities for use after school hours by community groups for a wide variety of scial, civic, and recreational peruposes. The district, however, had enacted a formal policy against opening facilites to groups for

wer to restrict speech, however, is not without limits. The restriction must not discriminate against speech on the basis of viewpoint…and the restriction must be ‘reasonable in light of the purpose served by the forum.’”
                      iii.      Facts: NY school board allowed community use of buildings after school for two relevant purposes: “(1) education, learning, and the arts and (2) social, civic and recreational meetings and entertainment events, and other uses pertaining to the welfare of the community, provided that such uses shall be nonexclusive and shall be open to the general public.” Good News Club was not allowed access because of the club’s religious nature
                      iv.      Constitutional Issues: (1) Did the board violate the free speech rights of the GNC? (2) If so, is such a violation justified by the concern that permitting GNC’s activities would violate the EC?
                        v.      Holdings:
1.      There was a violation of free speech—viewpoint discrimination
a.       Majority—Thomas
                                                                    i.      “We reaffirm our holdings in Lamb’s Chapel and Rosenberger that speech discussing otherwise permissible subjects cannot be excluded form a limited public forum on the ground that the subject is discussed from a religious viewpoint.”
                                                                  ii.      “Just as there is no question that teaching morals and character development to children is a permissible purpose under Milford’s policy, it is clear that the Club teaches morals and character development to children.” The Court says that this is enough—so long as the content is permissible, there can be no exclusion because of the perspective from which the content is brought forth—such exclusion is viewpoint discrimination.
2.      School has no valid Establishment Clause interest
a.       Court uses Rosenberger: “a significant factor in upholding governmental programs in the face of EC attack is their neutrality towards religion.”
                                                                    i.      “The Good News Club seeks nothing more than to be treated neutrally and given access to speak about the same topics as are other groups…allowing them to speak on school grounds would ensure neutrality, not threaten it.”
                                                                  ii.      “Second, to the extent we consider whether the community would feel coercive pressure to engage in the Club’s activities,…the relevant community would be the parents, not the elementary school children. It is the parents who chose whether their children will attend the Good News Club meetings. Because the children cannot attend without their parents’ permission, they cannot be coerced into engaging in the Good News Club’s religious activities.
                                                                iii.      Lessons are not given by teachers—no confusion
                                                                iv.      Small chance of student misperception of school sponsorship
                                                                  v.      On balance, any misperception is not worse than a possible perception of hostility toward religion
b.      Souter Dissent
                                                                    i.      Sees Good News as “evangelical service of worship,” believes allowing them access would mean that the school “must be opened for use as church, synagogue, or mosque,” and that “the timing and format of Good News’ gatherings…may well affirmatively suggest the imprimatur of officialdom in the minds of young children.”
                                                                  ii.      “Speech for ‘religious purposes’ may reasonably be understood to encompass three different categories. First, there is religious speech that is simply speech about a particular topic from a religious point of view….Second, there is religious speech that amounts to worship, or its equivalent….Third, there is an intermediate category that is aimed principally at proselytizing or inculcating belief in a particular religious faith….it does seem clear, based on the facts in the record, that the school district correctly classified those activities as falling within the 3d category of religious speech and therefore beyond the scope of the school’s limited public forum.”