Religious Holiday Expression in Schools and the Government, and the Rights Afforded in the 1st Amendment

Kevin Niedenfuer

11161

St. Thomas School of Law

Minneapolis, MN

Prof. Thomas Berg Supervising

Table of ContentsIntroduction 3

The 1st Amendment to the United States Constitution and its Vexing Contradiction 4

Landmark Rulings of Religious Expression and Modern Times Examples 6

Religion and the Education System 22

a. Prayer in Public Schools 22

b. School Music and Religion 27

c. Holiday Displays in Schools………………………………………………………………………………………………………28

Conclusion……………………………………………………………………………………………………………………………………………30

2

Introduction

December poses a challenge to anyone in this modern era of the United StatesAmerica who

wishes to celebrate a holiday in their school or place of government, and especially for

governments that wish to have holiday displays. Every year there are countless new law suits on

the news about people suing schools and their local governments because a Christmas tree or

similar expression was placed on government owned property, or a school had a Christmas

program which that seemed to exclude those children that did not celebrate the holiday. More

and more Aas the country changes and more non-Christians come into the country, there has

been a cultural shift thatwhich which has led to more secularism. There are also so many other

religions in this great nation that when a school or local government seemingly supports only one

or two, it creates a rift in the community , or with a few people that the 1st Amendment of the

Constitution deems to be improper. There is a long and cherished tradition in America which

comes from European cultures of celebrating holidays in the winter. It stems originates from the

Winter Solstice to the Jewish celebration of Hanukkah.1 (Staff, 2009) Christmas became the a

widely celebrated holiday it is known to be we know today around the early in the 17th century

when a religious wave swept was sweeping Europe. 2(Id.) When Charles Dickens wrote his

novel entitled “A Christmas Carol”, it changed the way that many people around the world

viewed Christmas and entrenched it firmly as a tradition in many western cultures. (Id.)3

1 http://www.history.com/topics/christmas/history-of-christmas (last visited Dec. 19, 2015)2 Id.3 Id.

3

North America has a wonderful tradition of allowing many immigrants to come and

jointake part in the proverbial melting pot. Of the many cultures and faiths in the United

States, Christianity is certainly the one which pervades the news and captures the majority

of litigation., however Tthere is also the Jewish holiday of Hanukkah, the Pagan holiday of

Yule, the African Holiday of Kwanzaa, and the Humanist holiday, Human Rights Day. Of

the popular holidays mentioned, there are even more people within those groups with much

fervor and a desire to not see their particular holiday put downexcluded. TheA popular term

used in the media in this modern era is the “War on Christmas”. It is seen Some Christians

see it as an attack by the media and certain rights groups such as the American Civil

Liberties Union on the celebration of Christmas and the expression of it during the holiday

months in places such as schools and government buildings. This tension seems to only beis

mounting as the years progress and little has been done by the courts to define the nature of

the exact meaning of the rights citizens have with regards to their religious expression. The

courts have had to take the first amendment and analyze it with the utmost scrutiny and

attempt to find a balance between its freedom of expression clause and its establishment of

religion clause, which seem to counter each other in quite a vexing way. The analysis by the

Supreme Court has led to some interesting results and they show that religious programs or

holiday display, if neutral not coercive, by Governments or schools serves many secular

purposes, and fit within the moral and historical nature of this country and within the confines of

the 1st amendment. This is the focus of this study, and it will serve as to be a guide to the past as

well as a representation of what might be in the future.

1. The 1st Amendment to the United States Constitution and its Vexing Contradiction

4

The analysis by the Supreme Court has led to some interesting results and they show that

religious programs or expression, if neutral not coercive, by Governments or schools serves

many secular purposes, and fits within the moral and historical nature of this country and within

the confines of the 1st amendment. This is the focus of this study, and it will serve as a guide to

the past as well as a representation of what might be in the future. There are many freedoms

afforded us by the Constitution of the United States, but the founders saw fit to make the

first Amendment be that: “Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the

press; or the right of the people peaceably to assemble, and to petition the Government for a

redress of grievances.”4 (law.cornell.edu, 2015) This first line forms a radical contradiction

which would seem to make the analysis of actions by religious actors impossible to permit

within government, yet at the same time seem to inhibit the government from stopping

such free expression.

The First Amendment was written because at America’s inception, citizens

demanded a guarantee of their basic freedoms coming out of a tyrannical government in

England. It has certainly become a hallmark of this country as a symbol of the rights and

liberties that the founders sought to express. It protects a wide range of actions and

expressions including speech, press, religion, assembly, and petition. Some of the earliest

battles in the struggle for disestablishment of religion came in the Colony State of Virginia

where the Anglican Church was the established and government supported religion. James

Madison and Thomas Jefferson argued that state support for any particular religion is

improper as it violates the natural God given right of liberty. Much of Jefferson’s troubles

came from the support of religion through taxation as. Hhe saidwrote: “Almighty God had 4 https://www.law.cornell.edu/constitution/first_amendment (last visited Dec. 19, 2015).

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created the mind free,” declared Jefferson’s bill. tThus, “to compel a man to furnish

contributions of money for the propagation of opinions which he disbelieves and abhors, is

sinful and tyrannical.”5 (First Amendment Center, 2015) Supreme Court Justice Robert

Jackson wrote: “ifIf there is any fixed star in our constitutional constellation, it is that no

official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion,

or force citizens to confess by word or act their faith therein,”6 (West Virginia State Board of

Education v. Barnette, 1943) Society in America has undergone a shift which has led to much

of the courts analysis of religion and thethe First Amendment being done recently, as it related

to religious expression, being done in the 20th century and 21st century. The cases looked at

ahead will show the Supreme Court’s analysis of the 1st Amendment as it relates to Religion

and expression and show the balance that has been achieved over the years.

2. Landmark Rulings of Religious Expression and Modern Times Examples

The courts have been very hesitant to take cases which relate directly to religious

expression, and because of this, much of the analysis takes place in cases which skirt the

issue and leave some ambiguitythrough the “Lemon Test”. One of the most prominent cases

relating to religious expression comes in the form of state sponsored school funding which

was going to Catholic Schools and although this case looks at the effects of a school

environment, the test that came out plays into holiday expression as well. Lemon v.

Kurtzman took place in 1971 and considered two programs put in place, one by

Pennsylvania and another by Rhode Island.7 (Lemon V. Kurztman, 1971) Rhode Island's

5 http://www.firstamendmentcenter.org/about-the-first-amendment (last visited Dec. 19, 2015).6 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 63 S. Ct. 1178 (1943)7 Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105 (1971)

6

1969 Salary Supplement Act provided for a 15% salary supplement to be paid to teachers

in nonpublic schools at which the average perpupil expenditure on secular education was

below the average in public schools. Eligible teachers could only teach courses offered in

the public schools, using only materials used in the public schools, and must agree not to

teach courses in religion. The court needed to find some sort of entanglement with

government and religion that constituted an establishment in this relationship in order to

find the act unconstitutional. The court looked at the fact that the Roman Catholic schools

were the only beneficiary of the salary supplement act, and the nature of the Church’s

control over the schools.8 (Id.) Here, the court found that the Church had direct control

over the school, and its primary goal was the advancement of the Catholic faith through

education. This was found by noting the location of the schools to parishes, and the

religious symbols in the schools such as crucifixes and religious paintings.9 (Id.) There were

numerous religious based extra-curricular activities as well as the fact that over two thirds

of the teachers employed were nuns. This was especially important since although the

textbooks they were using were religiously neutral, the nuns teaching them most certainly

would teach with a religious slant and expecting anything else would not be logical. This

would seem to show a direct correlation between the government funds and the

advancement of a specific religion, which is what must be avoided as clearly indicated by

the establishment clause. This control that the court assumed of the teachers was not a bad

faith assumption either, as they simply acknowledged that a person working for an

organization will inevitably espouse to its ideals. What ultimately killed this act was that it

was based on a system which mandated the government to analyze any school which taught

8 Id. At 2089 Id. At 210

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over half of its curriculum as religious. This made the court uneasy looking into what is

secular and what is religious as it is not the court’s duty to analyze religion.10(Id.)

The Pennsylvania statute also provided state aid to church-related schools for

teachers' salaries. It was an educational system very similar to the one in Rhode Island.

According to the allegations, the church-related elementary and secondary schools were

controlled by religious organizations, and had the purpose of propagating and promoting a

particular religious faith, and conducting their operations to fulfill that purpose. 11(Id.) This

led to the same result overall, and the court also pointing outThis that the politics of any

community which has this type of system would require voters to essentially vote with their

respective religion, and creating such a system is precisely what the establishment clause

seeks to avoid.

The court came to the conclusion that it is necessary to determinedetermined the

constitutionality of state actions with reference to the three main evils against which the

Establishment Clause was intended to afford protection: sponsorship, financial support,

and active involvement in religious activity.12 A three-part test for the constitutionality of

state statutes touching on these evils emerged. Firstly, the government’s action must have a

secular legislative purpose. Secondly, the government’s action must not have the primary

effect of either advancing or inhibiting religion. Thirdly, the government’s action must not

result in excessive government involvement with religion. (Id.) 13Whether entanglement is

excessive involves an examination of the character and purposes of the institutions that are

benefited, the nature of the aid that the state provides, and the resulting relationship

10 Id.11 Id.12 Walz v. Tax Commission, 397 U.S. 664, 668 (1970)13 Lemon v. Kurtzman, 403 U.S. 602, 614 91 S. Ct. 2105 (1971)

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between the government and the religious authority. If any of the three prongs are violated,

the government’s action is deemed unconstitutional under the Establishment Clause. While

it is not clear from the record the intent of the Pennsylvania and Rhode Island legislature.,

Tthe cumulative impact of the statutory programs involved excessive entanglement of the

government with religion. Here, Bboth statutes foster an impermissible degree of

entanglement, and are thus unconstitutional. This ruling set the precedent for future

litigation on this matter setting the test at the purpose and effect of the government action

or expression, and although funding is not the topic of this study, it sets the test at purpose

of content and purpose of expression in how governments deal with establishment. It

became known as the “Lemon Test”.14

A logical next step in the court’s analysis came in Marsh v. Chambers.15 103 S.Ct.

3330 (1983) Ernest Chambers was a taxpayer and member of the Nebraska State

Legislature. He opposed the long held practice of having a publically funded chaplain open

their the sessions with a prayer. The court began by reviewing the nature and history of

prayer in legislative sessions and concluded that it had a very strong place in the history

and legislative intent of the founders.16.(Id.) They concluded that one of the

foundersfounder’s very first tasks before forming the Bill of Rights was to decide on a

chaplain to lead the body in prayer before it began. They said: “Clearly the men who wrote

the First Amendment Religion Clause did not view paid legislative chaplains and opening

prayers as a violation of that Amendment, for the practice of opening sessions with prayer has

continued without interruption ever since that early session of Congress.”17 (Id.) The court

14 Id. 21015 Marsh v. Chambers 103 S.Ct. 3330 (1983)16 Id.17 Id. At 789

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was not intending to have history weight more heavily than the present meaning of the

constitution, however they it made clear that it had a role in determining the meaning of the

founder’s intent in crafting the 1st Amendment. They took this logic to mean that the

founders clearly had no intent to prevent such legislative prayer. They then looked at the

context of the claims against the legislature and determined that the length he had been

hired was not a factor since that merely served to show that he was qualified and that did a

proper job. On the issues of the use of public funds to pay the chaplain, the court reasoned

that history lends tofavors chaplains being paid by legislatures, and again referenced the

Continental Congress in paying a chaplain before the Bill of Rights was formulated. The

third concern was very interesting as it related to the chaplains denomination and content

of the prayer. The court was not interested at all in determining the content of a prayer,

nor the denomination of the chaplain, and they said as much was “not the concern of

judges”. 18 (Id.) They allowed the Nebraska legislature to continue with their tradition,

making the weight of historical analysis that much stronger in consideration with the

“Lemon Test”.

With the foundation of the “Lemon Test” and historical analysis, the court was

primed for the first direct case in this study relating to a Christmas display on government

property. The town of Pawtucket, Rhode Island held an annual holiday display in

cooperation with local businesses in a part owned by a non-profit organization.19 (Lynch v.

Donnelly, 1984) This display had many different types of figures and decorations, but the

one that the ACLU and some Pawtucket residents took issue with was a nativity scene

which depicted the infant baby Jesus, Mary, and Joseph. The lower courts found that the

18 Id. At 79519 Lynch v. Donnelly, 465 U.S. 668, 104 S. Ct. 1355 (1984)

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inclusion of the nativity scene or Crèche meant that the city “tried to endorse and

promulgate religious beliefs,”, and that “erection of the crèche has the real and substantial

effect of affiliating the City with the Christian beliefs that the crèche represents. This

“appearance of official sponsorship,” it believed, “confers more than a remote and incidental

benefit on Christianity.” 20 (Id.) The court stated firstly that the concept of a wall of

separation between church and government did not accurately represent the relationship

that 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. Anything less would require the “callous indifference that was never

intended by the Establishment Clause.21 (Zorach v. Clauson, 1952) They continued to affirm

that 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. 22 (Lynch v. Donnelly, 1984) The court then

went on to look at the context of the display as a whole and what was actually being done.

They determined that the display was put there to acknowledge and celebrate a Holiday

which that is recognized by Congress and that has a great national tradition for the nation.

Depicting the origins of this Holiday served a legitimate secular purpose, and they found

that there was no more of an endorsement of religion here than there was in the Nebraska

legislature case of prayer. They reasoned that there was no contact with church authorities

in the maintenance and care of the display and that no input had been given. The finished

by saying: “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

20 Id. At 78721 Zorach v. Clauson, 343 U.S. 306, 72 S. Ct. 679 (1952)22 Lynch v. Donnelly, 465 U.S. 668, 104 S. Ct. 1355 (1984)

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public sessions with prayers, would be an overreaction contrary to our history and our

holdings.” 23 (Id.) The finding that the display was constitutional certainly gave way to

feelings that the court was broadening the scope of what would be allowed within

constitutional boundaries.

In 1989 a case dealing with two different holiday displays in Pittsburg, Pennsylvania

made it to the Supreme Court on a suit by the ACLU and certain Pittsburg residents.24

(COUNTY OF ALLEGHENY, et al v. ACLU, 1989) The first, a crèche depicting the

Christian Nativity scene, was placed on the Grand Staircase of the Allegheny County

Courthouse, which is the “main,” “most beautiful,” and “most public” part of the

courthouse.25 (Id.) Its manger had at its crest an angel bearing a banner proclaiming

“Gloria in Excelsis Deo,” meaning “Glory to God in the Highest.”26(Id.) The second display

was a large Chanukah Menorah, which was placed outside the county building. It was

placed next to the city’s 45 foot Christmas tree. There was also a sign placed near the

display which listed the mayor’s name and the city’s salute. The menorah was owned by a

Jewish group but maintained by the city. This meant that they only stored it and set it up

as needed each year. The lower courts each distinguished the previous rulings in deciding

for and against the county. The District court concluded that the Lynch v. Donnelly rule

applied here meaning that it was a long standing tradition for the city, and that just

because there was a religious affiliation to the display, it did not mean there was any

endorsement over any other religion. The Appeals Court felt found that under the “Lemon

Test” there was no secular purpose to be had and therefore an endorsement existed.

23 Id. At 685-68624 Cty. of Allegheny v. ACLU, 492 U.S. 573, 109 S. Ct. 3086 (1989)25 The comment about the beauty of the area was noted in the facts by the county. 26 Id. At 598

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The court began with the analysis of the banner which read: “Glory to God in the

Highest”.27 (Id.) Justice Blackmun noted that with the “Lemon Test” in mind, the court had

in the past taken into consideration, “endorsement,” “favoritism,” “preference,” or

“promotion,” and that the essential position of the Establishment Clause remains the same.

28 (Id.) It must prohibit the government from taking a position on questions of religion, or

making religion a factor in any citizens standing politically. A banner that reads “Glory to

God…” certainly seems to look like the government is siding with this statement and the

court found as much. The court found the message to be an overtly Christian message as

opposed to the Lynch case where there were things to detract from the message and bring

balance. Justice Blackmun noted that while the government may certainly acknowledge

Christmas as a cultural phenomenon, it may not observe it as a Christian holy day by

implying that everyone should praise God for the birth of Jesus.(.29 Id.) History was

acknowledged, however in this case, the court stated that history cannot make up for the

fact that this is in blatant violation of the establishment clause by creating an allegiance to

a certain religion. The intent of the opinion was to create an environment in which

government may acknowledge the holiday without expressing an impermissible allegiance

to Christian beliefs.

On the other hand, Tthe Menorah together with a Christmas tree did not have the

effect of creating such an allegiance. The Christmas tree was enough of a secular symbol of

the holiday to constitute a proper balance along with the Menorah and the sign with the

salute. It was said to convey a particular sense of freedom and solidarity which, according

27 Id. 28 Id. At 65529 Id. At 620

13

to the court, could not be interpreted by a reasonable observer as an endorsement of any

particular religion. Justice Blackmun noted:

“given its “particular physical setting.” Its combined

display with a Christmas tree and a sign saluting liberty does not

impermissibly endorse both the Christian and Jewish faiths, 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 season

emphasizes this point. The tree, moreover, by virtue of its size

and central position in the display, is clearly the predominant

element, and the placement of the menorah beside it is readily

understood as simply a recognition that Christmas is not the only

traditional way of celebrating the season. The absence of a more

secular alternative to the menorah negates the inference of

endorsement. Similarly, the presence of the mayor's sign

confirms that in the particular context the government's

association with a religious symbol does not represent

sponsorship of religious beliefs but simply a recognition of

cultural diversity. Given all these considerations, it is not

sufficiently likely that a reasonable observer would view the

combined display as an endorsement or disapproval of his

individual religious choices.” 30(Id. At 3111-3115) 30 Id. At 620

14

The court concluded in finding that of the two displays, the Menorah was proper

and the banner was not. This confused many people, and left many cities and

municipalities with little to go on as the ruling seemed to contradict the previous rulings

regarding tradition. Justice O’Conner had a concurring opinion in the Allegheny case in

which she clarified the meaning of the court’s endorsement test:

“In my view, the central issue in Lynch was whether the

city of Pawtucket had endorsed Christianity by displaying a

creche as part of a larger exhibit of traditional secular symbols

of the Christmas holiday season. In Lynch, I concluded that the

city’s display of a creche in its larger holiday exhibit in a private

park in the commercial district had neither the purpose nor the

effect of conveying a message of government endorsement of

Christianity or disapproval of other religions. The purpose of

including the creche in the larger display was to celebrate the

public holiday through its traditional symbols, not to promote the

religious content of the crèche.” 31(Bomboy, 2013) (Id.)

The pattern by the court seems at times to skirt the issue and make it more about

this endorsement test than anything. To the lay person, it certainly seems a contradiction to

say that a government may celebrate a holiday through its traditional symbols, but at the

same time not endorse it. A better way to view it could be more as equality than

endorsement, but s Justice O’Conner was clarifying in her concurring opinion, the idea is

not to create a scenario in which one religion seems to be overtly supported over another

31 , http://blog.constitutioncenter.org/2013/12/the-supreme-courts-thoughts-on-reindeer-and-christmas-displays/ (last visited Dec. 20, 2015).

15

while at the same time not supporting anything at all to the degree of endorsement. In the

Allegheny case, the Menorah and Christmas tree display along with the city plaque display

were considered constitutional based on the fact that they created an overall display which

was nonsectarian. That is a crucial point to the Allegheny case as well. l, Tthe fact that

although the banner in the building was sectarian, it, it did not coerce or exclude anyone

yet was found unconstitutional. The next case which was recently decided changed the rule

yet again.

Another case dealing with prayer made it to the Supreme Court in 2013 and was

decided in 2014. It dealt with the town of Greece in New York which had opened its

monthly town board meetings with roll call, a recitation of the Pledge of Allegiance, and a

prayer by a clergy which was selected from the congregations listed in the local directory.

The prayer was open to all creeds and religions, however the vast majority of the local

congregations were Christian and the result was nearly all of the prayers being Christian.

Certain citizens who attend the meetings filed suit alleging that the town violated the First

Amendment and favored Christian denominations over other religions in the area and

were overtly sectarian. The town wished to limit the board to “Inclusive and Ecumenical”

prayers. 32(Town of Greece N.Y. v. Galloway, 2014)

The town followed an informal method for selecting prayer givers, all of whom were

unpaid volunteers. A town employee would call the congregations listed in a local directory

until she found a minister available for that month's meeting. The town eventually

compiled a list of willing “board chaplains” who had accepted invitations and agreed to

32 Town of Greece v. Galloway, 134 S. Ct. 1811 (2014)

16

return in the future. The town at no point excluded or denied an opportunity to a would-be

prayer giver. Its leaders maintained that a minister or layperson of any persuasion,

including an atheist, could give the invocation. But nearly all of the congregations in town

were Christian; and from 1999 to 2007, all of the participating ministers were too.33 (Id.)

There was no review process in place for the prayers. The clergy had full control to write

and say whatever they wished. The prayers which were specifically given objection to were:

“Lord we ask you to send your spirit of servanthood upon all of

us gathered here this evening to do your work for the benefit of

all in our community. We ask you to bless our elected and

appointed officials so they may deliberate with wisdom and act

with courage. Bless the members of our community who come

here to speak before the board so they may state their cause with

honesty and humility.... Lord we ask you to bless us all, that

everything we do here tonight will move you to welcome us one

day into your kingdom as good and faithful servants. We ask this

in the name of our brother Jesus. Amen.” 34(Id.)

And:

“Lord, God of all creation, we give you thanks and praise for

your presence and action in the world. We look with anticipation

to the celebration of Holy Week and Easter. It is in the solemn

33 Id. At 181434 Id. At 1816

17

events of next week that we find the very heart and center of our

Christian faith. We acknowledge the saving sacrifice of Jesus

Christ on the cross. We draw strength, vitality, and confidence

from his resurrection at Easter.... We pray for peace in the world,

an end to terrorism, violence, conflict, and war. We pray for

stability, democracy, and good government in those countries in

which our armed forces are now serving, especially in Iraq and

Afghanistan.... Praise and glory be yours, O Lord, now *1817

and forever more. Amen.” 35(Id.)

Upon hearing the complaints of the citizens, the board sought to hire a Jewish chairman of

a local temple to deliver a prayer. A Wiccan priestess was also allowed to give an

invocation. The citizens brought suit requesting an injunction to limit the town to inclusive

and ecumenical prayers.36 (Id.) The District Court found no unconstitutional behavior on

the part of the town. It concluded that the town had excluded no one, and in fact made it as

easy as possible for anyone to give an invocation if they wished. The town was found to be a

vast majority Christian therefore resulting in the Christian majority of invocations, and

they found no precedent for a town to have to go outside of their borders to achieve a

minimum level of diversity. The court also concluded that having many sects of religion

pray, as the town did, meant that a reasonable person could not establish that the town was

endorsing or affiliating with any certain particular religion.

The Appeals Court found it was more to do with the actions of the particular

prayers than the overall content of the prayers. They said that the town in not inviting

35 Id. At 181736 Id. At 1818

18

ministers from outside, had “All but insured a Christian viewpoint.”37 (Id.) They focused on

the content and behavior of the ministers invited to pray. They concluded that since they

often told the body to bow their heads and pray, or simply say “let us pray”, that meant an

affirmative control aspect over the body and an endorsement. The Court of Appeals

emphasized that it was the “interaction of the facts present in this case,” rather than any

single element, that rendered the prayer unconstitutional.38 (Id.) They found the town’s

prayer methods to be unconstitutional.

Analysis began with the Marsh v. Chambers decision. It referenced the tradition and

how: “The Court has considered this symbolic expression to be a “tolerable

acknowledgement of beliefs widely held,”39 (Marsh v. Chambers, 1983), rather than a first,

treacherous step towards establishment of a state church.40 (Town of Greece N.Y. v.

Galloway, 2014) The practice of legislative bodies in the United States hiring clergy to pray

and give invocations has been around since before the Constitution, and during its framing.

They were careful to point out that Marsh stands for the proposition that it is not necessary

to define the precise boundary of the Establishment Clause where history shows that the

specific practice is permitted, and any test the Court adopts must acknowledge a practice

that was accepted by the Framers and has withstood the critical scrutiny of time and

political change.41 (COUNTY OF ALLEGHENY, et al v. ACLU, 1989) From this

springboard the court analyzed the prayer system based on the tradition and practice of

state legislatures. The citizens bringing suit felt that Marsh did not approve prayers

containing sectarian language like “Death, resurrection, and ascension of Jesus Christ”.

37 Id. At 181838 Id.39 Marsh v. Chambers 103 S.Ct. 3330 (1983)40 Town of Greece v. Galloway, 134 S. Ct. 1811 (2014)41 Town of Greece v. Galloway, 134 S. Ct. 1811 (2014), 1814

19

They also contended that the content of the board meetings created an atmosphere of

exclusion which created subtle coercive pressures on nonbelievers to feel like they had to go

along with it, or feel like they were outsiders. The court did not agree with this line of

reasoning. Marsh was decided not on the basis of nonsectarian beliefs, but on the idea that

sectarian beliefs could coexist with the principles of disestablishment. 42 (Id.) History has

shown that legislators have been inviting clergy into meetings for such a long period of time

that the lack of diversity of the past cannot be used to show no sectarianism, on the

contrary, inviting clergy from other beliefs into the proceedings shows the opposite.

The decision in Allegheny had the effect of creating language which the court used

to say that legislative prayer must be generic or nonsectarian. This came from dictum or

authoritative but non-binding analysis. The court here took both cases into context and

concluded that Marsh did not support the facts to come to that conclusion. They noted that

the content of the prayer was not at issue in that case to determine constitutionality, and

that the clergy did not change his prayer to fit that narrative, but instead he did so to reach

more members of the legislative body.43 (Id.) To enable courts to analyze the content of

prayers would place the judicial branch in a precarious place. The Court instructed that

the content of the prayer is not of concern to judges, provided “there is no indication that

the prayer opportunity has been exploited to proselytize or advance any one, or to

disparage any other, faith or belief. (Id.) The process involved in policing prayer by the

legislature would create a new duty to supervise and censor free speech and this would

certainly be worse than the current process the city had in place. The interesting part of

this analysis is part of what took place in the early proceedings of litigation between the

42 Id. At 181843 Id. At 1824

20

town and the people. Firstly, Tthey wrote a letter demanding that the city use only general

references to God such as: “Father, God, Lord, and the Almighty”, and that references to

“Jesus Christ, the Holy Spirit, and the Holy Trinity” are not proper. The court realized

that this could still offend atheists or polytheists. The process of analyzing a prayer for

neutrality is in and of itself not neutral. The court certainly understood that there needs to

be constraints on some content of prayers, for example ones which denigrate nonbelievers

or religious minorities, threaten damnation, or preach conversion, as many present may

consider the prayer to fall short of the desire to elevate the purpose of the occasion and to

unite lawmakers in their common effort.

The overall tone is what the court was pressing on, and although a few prayers in

the course of the town’s history have certainly been excluding in nature to some, the overall

tradition is within the goal of the program. They further stated: “Although these [few]

remarks strayed from the rationale set out in Marsh, they do not despoil a practice that on the

whole reflects and embraces our tradition. Absent a pattern of prayers that over time

denigrate, proselytize, or betray an impermissible government purpose, a challenge based

solely on the content of a prayer will not likely establish a constitutional violation. Marsh,

indeed, requires an inquiry into the prayer opportunity as a whole, rather than into the

contents of a single prayer”.44 (Id.) From this analysis they said that since the town made

reasonable efforts to get clergy from all local beliefs, there was no discrimination and as

long as they continued with this, it was proper.

The second issue on whether there was actual coercion toward the townspeople who

were not of the religion of the present clergy, the court found that bodies such as town

44 Engel v. Vitale, 370 U.S. 421, 82 S. Ct. 1261 (1962)

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boards to not have the same intimate nature as a school or other function. They also did

not single out those who did not participate and nothing in the record suggested that

members of the public were dissuaded from leaving the meeting room during the prayer,

arriving late, or even, as happened here, making a later protest. From this, the court found

that the prayer system was constitutional.

The difference in ruling here compared to the Allegheny case is clear in that now, in

order to remain within constitutional borders, the action does not necessarily have to be

nonsectarian as long as it is not coercive or exclusionary to anyone. This is not an easy thing

to quantify, but in the case of the Town of Greece, the court looked at the nature of a town

board meeting and even the stage in which the prayer took place. The fact that it took place

during the beginning phase of the meeting when things like swearing in new officers, and

calendar scheduling took place led the court to believe that the nature of the prayer was to

help the town legislators get into the mode of somber reflection and contemplation. This

would be different if they had the prayer during the legislative portion of the meeting and

perhaps required all participants to pray before each vote. This change in the courts

opinion could mean new types of rulings on such Christmas displays in the future. If the

crèche in Allegheny with the banner which was found to have a patently Christian message

had been ruled over after Town of Greece the court would likely find it constitutional with

the considerations of tradition in celebrating winter holidays and the fact that now it seems

the burden of proving exclusion or coercion is a bit higher. A person would have to show

that walking by the banner either excludes their belief, or coerces them to practice

Christianity. It is not clear that the banner would do either of those things, however with

the tradition in mind, it could turn differently. The key factor for finding the crèche

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unconstitutional was that it was a sectarian display and therefore was a de facto

endorsement based on the court’s ruling at the time as well as the fact there was no other

religion represented alongside it. Now, being a solely Christian display would not

necessarily be enough to condemn it. The current cases did not overrule the “Lemon Test”

but they served to expound on certain areas such as the endorsement test portion which is

the most important in finding evidence that such government entanglement has occurred.

The “Lemon Test” has much more involvement in the courts rulings in the cases on

religion and the education system.

3. Religion and the Education System

Cases involving religious expression in schools over the years have in many ways mirrored

the cases on crèches and displays on public land. A crucial difference is that the educational

system is different from the previous examples in that children are much more impressionable

and the courts have noted this heavily in their opinions. Holiday expression plays heavily into

regular religious expression as well butsince in an educational setting, the tradition factor is

lessoned.

a. Prayer in Public Schools

A landmark case from 1962 set the precedent on whether state legislation can require

principals, teachers and students to begin the day with prayers that are sponsored and

written by the state.45 (Engel v. Vitale, 1962) In Engel v. Vitale, tThe parents of ten pupils in

New York schools challenged the constitutionality of a New York state law requiring public

schools to begin each day with a state authorized prayer drafted by the State Board of

Regents. These parents argued that state-sponsored prayers in public schools violated the 45 Id. At 423

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Establishment Clause.46 (Id.) Unsurprisingly, the court found that school officials may not

require devotional religious exercises during the school day, as this practice

unconstitutionally entangles the state in religious activities and establishes religion.

Looking into America’s history, the court found that the First Amendment protects

religious liberty by keeping government from determining when and how people engage in

religious expression.47 (Id.) They noted that early Americans 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."48 (Id.) The

courts analysis of the difference between the Establishment Clause and the Free Exercise

Clause was essentially that they forbid two quite different kinds of governmental

encroachment upon religion.: Tthe Establishment Clause, unlike the Free Exercise Clause,

does not depend upon direct governmental compulsion. It and is violated by enactment of

laws which establish an official religion whether they operate directly to coerce

nonobservant individuals or not.49 (Id.) They concluded that the prayer, while it did not

exclude all other religions, and coerce nonbelievers, did create an uncomfortable

relationship between the New York government and the religion which they could not

abide. This early analysis of the facts forms a sort of early “Lemon Test” as it took place

nearly nine years before the Lemon case. They looked at the intent of the law and the

purpose of the school and the resulting consequence of having students carry out the law.

What this case did so well was to showcase the faults of government supporting religion,

46 Id. At 43047 Id. At 43148 Id. At 43149 Id. At 431

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and the court’s vivid understanding in how so much could go so wrong. They said: “[The]

Establishment of Religion Clause stands for expression of principle that religion is too

personal, too sacred, and too holy, to permit its unhallowed perversion by civil magistrate.”, as

well as: “First and most immediate purpose of Establishment of Religion Clause rested on

belief that union of government and religion tends to destroy government and to degrade

religion.”50 (Id.) From a policy standpoint within an educational setting, the implications for

allowing such mixing of law and religion is troubling. A school which forces students to

engage in religious activity would surely either degrade that certain religion, or create such

an environment of homogeny which stifles creativity and free thinking. The court foresaw

these implications and made it quite clear. The dissent in the Vitale case did not believe that

a law like this would harm any children not wanting to engage in it. Justice Potter Steward

said: “With all respect, I think the Court has misapplied a great constitutional principle. I

cannot see how an 'official religion' is established by letting those who want to say a prayer

say it. On the contrary, I think that to deny the wish of these school children to join in reciting

this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation."

51 (Id.) Had this opinion been the majority, it certainly would have changed the future

analysis of this topic as tradition and expression would likely have been bolstered.

The issue of state-sponsored school prayer had been dealt with in Engel, however a

year later, another school district in Pennsylvania was sued over beginning their day with

Bible readings. The law required 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 written

50 Id. At 44651 Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 83 S. Ct. 1560 (1963)

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request of his parent or guardian.’52 (School Dist. of Abington TP, PA v. Schempp, 1963) The

verses were broadcast into each room in the school building through an

intercommunications system and were conducted under the supervision of a teacher by

students attending the school's radio and television workshop. There were no prefatory

statements, no questions asked or solicited, no comments or explanations made and no

interpretations given at or during the exercises. The students and parents were advised that

the student may absent himself from the classroom or, should he elect to remain, not

participate in the exercises.53 (Id.) The Schempp family testified that they felt removing

their children from these readings would harm their relationships with both the teachers

and their friends. Children seeing their friends leave during something so common would

certainly raise questions and could even affect their grades. The Court found that state-

sponsored devotional exercises violate the Establishment Clause. The Constitutional defects

are not corrected by allowing an opt-out provision. The Establishment Clause constrains

government from involving itself in religious matters. Therefore, government action that

promotes or inhibits religion violates the Constitution. The state may not draft or conduct

religious prayers in schools filled with captive audiences of children. The court even hinted

at the formulation they would come to create in Lemon when they stated: “To withstand the

strictures of the Establishment Clause of the First Amendment there must be a secular

legislative purpose and a primary effect that neither advances nor inhibits religion.” 54

Prayer within the everyday school life is one thing, but what about prayer at formal

public school events? Lee v. Weisman brought up the issue of prayer within a graduation

ceremony. In the public school system, principals were permitted to invite members of the clergy 52 Id. At 20753 Id. At 22354 Lee v. Weisman, 505 U.S. 577, 112 S. Ct. 2649 (1992)

26

to offer invocation and benediction prayers as part of formal school graduation ceremonies. A

parent of one of the students about to graduate from middle school brought suit for an injunction

on the ability to invite clergy into the school. 55 The court looked at all the tests mentioned before

in prior cases but this time they focused on the nature of a school versus the prior settings. They

noted there are heightened concerns with protecting freedom of conscience from subtle coercive

pressure in the elementary and secondary public schools. Supreme Court decisions recognize,

among other things, that prayer exercises in public schools carry a particular risk of indirect

coercion. The concern is not limited to the context of schools, but it is most pronounced there.

What to most believers may seem nothing more than a reasonable request that the nonbeliever

respect their religious practices, in a school context may appear to the nonbeliever or dissenter to

be an attempt to employ the machinery of the state to enforce a religious orthodoxy. 56 There was

also the argument that the ability to excuse one’s self from the ceremony counteracted any

coercion students might face. The court said that since graduation ceremonies were such an

important part of life that a student and their family could not be expected to excuse themselves

to avoid involvement in religion. 57 The important factor in this ruling is that school sponsored

prayer in these types of ceremonies is unconstitutional. Student sponsored prayer like a student

led prayer before a football game has also been found unconstitutional. This was because it was

public speech authorized by government policy. 58 According to the district, students would vote

each year on whether they would have prayers at home football games. If they decided to do so,

they would then select a student to deliver the prayers. To ensure fairness, the school district said

55 Id. At 59256 Id.57 Adler v. Duval County, 250 F.3d 1330 (11th Cir. 2001), cert. denied, 122 S. Ct. 664 (2001).58 Doe v. Duncanville Indep. School Dist., 70 F.3d 402, 407 (5th Cir. 1995)

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it required these prayers to be “non-sectarian [and] non-proselytizing.” Even this provision was

not enough to pass constitutional muster.

The court has not quite found that all student prayer is unconstitutional since there is still

a balance between the Free Exercise clause and the Establishment Clause. Case law suggests that

student speech in a school which is solely up to the student may contain religious expression.

This might be a graduation speech of the school maintains no limits on what is said and leaves

complete freedom to the student. 59 The problem is that the school opens itself to scrutiny by

letting the student say whatever they wish to. A student club presentation containing religious

expression would be an example of something which is constitutional since the school has no

control over the content. Student papers and work done presents an interesting problem though

since schools do have control over the subject matter. A student writing a paper which contains

religious expression which is published in the school newspaper could possibly raise issues if the

school paper is edited by some faculty. Generally it should be permitted for students to express

religion in projects. This does not mean, however, that students have the right to compel a

captive audience to participate in prayer or listen to a proselytizing sermon. School officials

should allow students to express their views about religion, but should draw the line when

students wish to invite others to participate in religious practices or want to give a speech that is

primarily proselytizing

b. School Music and Religion

School-sponsored singing of religious music poses slightly different concerns because so

much choral music is religious. The vast majority of serious choral music has both religious

undertones and origin. The courts have also recognized that there is a secular purpose in having

59 Doe v. Aldine Indep. School Dist., 563 F. Supp. 883, 888 (S.D. Tex. 1982)

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choral music taught. Additionally, forbidding choirs to sing any music that is religious has been

found to be hostile, not neutral, toward religion.60 Courts have also found no distinction between

singing prayers and regular prayers. 61 Songs which "call on God for His blessing and contain an

avowal of divine faith," are not appropriate for public school students to sing. 62

(Id.)

c.[a.] Holiday Displays in Schools

A more recent case in 2006 from New York made it to the U.S. Court of Appeals. Skoros v.

City of New York is an example of the courts current analysis highlighting the “Lemon

Test”. The Skoros family brought suit to attempt to get the New York Elementary and

Middle School districts to include a crèche in their holiday display.63 (Skoros v. City of New

York, 2006) The display allowed the menorah to be displayed as a symbol of the Jewish

holiday of Chanukah and the star and crescent to be displayed as a symbol of the Islamic

holiday of Ramadan, but it did not allow a crèche or nativity scene to be displayed as a

symbol of the Christian holiday of Christmas.64 (Id.) The court highlighted the “Lemon

Test” which states: Under the Establishment Clause of the First Amendment, government

action that interacts with religion: (1) must have a secular purpose; (2) must have a principal

or primary effect that neither advances nor inhibits religion; and (3) must not foster an

excessive government entanglement with religion. The court held that the display which

purposefully neglected a Christian crèche fulfilled its secular purpose by promoting

60 Id. At 88561 Skoros v. City of N.Y., 437 F.3d 1 (2d Cir. 2006)62 Id. At 863 Id. At 4064 Id.

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pluralism and tolerance for other cultures and diverse customs in the holiday season. It

found that a reasonable person would not deduce that just not including the crèche was an

endorsement of Judaism andor Islam or vice versa. There was no government entanglement

in religion as the municipality's secular characterizations of the menorah and star and

crescent disciplined only government speech with no government authorities intruding into

religious affairs and no religious authorities intruding into civic affairs. The court noted

the burden required was that the government place a substantial burden on the

observation of a central religious belief without a compelling governmental interest

justifying the burden, only then would a Free Exercise claim hold up. Since the Skoros

family had sued under the claim of not being able to raise their children according to their

beliefs, the court noted: “Just as government may not compel any person to adopt a

prescribed religious belief or form of worship, no person may require the government under

the First Amendment Free Exercise clause to behave in ways that the individual believes will

further his or her spiritual development or that of his or her family.”65 (Id.) The court found

that the display was constitutional, but had there been a showing that more children felt

excluded, or that the secular purpose was not actually being accomplished, things may have

turned out differently. This case seems to contradict the previous cases on prayer in some

ways. Firstly, the secular purpose of teaching diversity and pluralism outweighed the factor

that they were in a sense recognizing events of the holiday season and overtly excluding one

of the largest parts. There is also the argument that real diversity cannot be had unless the

whole picture is seen, however this court did not view it that way. Secondly, the court here

took a different approach to the second prong of the “Lemon Test” which deals with

whether or not a law advances or inhibits religion. The program which takes place in the

65 Id.

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winter season could only have the purpose of advancing the two religions even if their

primary goal is diversity. The reason that many of the educational cases differ from

holiday display cases is that in the educational environment, children are much more

impressionable than adults, and the courts have repeatedly taken this into account. The

court in this case did not take proper consideration into what a program like this might

represent to the average child.

The educational system cases differ slightly from the holiday display cases, but the

overall message is the same. Educational system cases require more of the balance of

purpose and effect (“lemon test”) and the holiday display/prayer cases take tradition more

into account. This is seen by the majority of holiday display cases which often allow a

display if it does not support or hinder other religions in its context, while taking into

account the tradition involved. Prayers as well play into the overall analysis of tradition

involved. The many cases which allow prayer in the legislature take into account the vast

history of prayer and clergy being hired and paid for with taxpayer money. A helpful way

to view the court’s opinion on religion in schools and about how to represent programs in

such schools is that the state cannot coerce students regarding religion. Such indirect

coercion as seen in Engel was improper because even though the students could opt out, it

would still have indirect effects. It may signal to the student that just because it is being

taught, that it is something that the government endorses.

Conclusion

Navigating the waters when it comes to a holiday expression in schools is not an easy

thing in this modern age of jurisprudence. The analysis by the Supreme Court has led to some

interesting results and they show that religious programs or expression, if neutral and not

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coercive, by Governments or schools serves many secular purposes, and fits within the moral and

historical nature of this country and within the confines of the 1st amendment., however if it has

a secular purpose and does not coerce students, it should be proper. An example of this might be

a holiday music group which sings Christmas themed music. If the program is voluntary and is

not forced on anyone by being played over the school’s loudspeakers or something similar, it

should be permissible. There certainly are ways of acknowledging holidays within the public

school sector, and students are still free to create or participate in student led groups.

References

Adler v. Duval County, 250 F.3d 1330 (11th Cir. 2001), cert. denied, 122 S. Ct. 664 (2001)Bomboy, S. (2013, Dec 18). The Supreme Court’s thoughts on reindeer and Christmas displays.

Retrieved from National Constitution Center: http://blog.constitutioncenter.org/2013/12/the-supreme-courts-thoughts-on-reindeer-and-christmas-displays/

COUNTY OF ALLEGHENY, et al v. ACLU, 109 S.Ct. 3086 (July 3, 1989).

Doe v. Duncanville Indep. School Dist., 70 F.3d 402, 407 (5th Cir. 1995)

Engel v. Vitale, 370 U.S. 421 (1962).

First Amendment Center. (2015, Nov 20). About the First Amendment. Retrieved from First Amendment Center: http://www.firstamendmentcenter.org/about-the-first-amendment

law.cornell.edu. (2015, Nov 29). First Amendment - Constitution. Retrieved from Legal Information Instutute: https://www.law.cornell.edu/constitution/first_amendment

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Lee v. Weisman, 505 U.S. 577, 112 S. Ct. 2649 (1992)

Lemon V. Kurztman, 91 S.Ct. 2105 (June 28, 1971).

Lynch v. Donnelly, 104 S.Ct. 1355 (March 5, 1984).

Marsh v. Chambers, 103 S.Ct. 3330 (July 5, 1983).

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 120 S. Ct. 2266 (2000)

School Dist. of Abington TP, PA v. Schempp, 83 S.Ct. 1560 (June 17, 1963).

Skoros v. City of New York, 437 F.3d 1 (Feb 2, 2006).

Staff, H. (2009, November 28). History of Christmas. Retrieved from History.com: 2015

Town of Greece N.Y. v. Galloway, 134 S.Ct. 1811 (May 5, 2014).

Walz v. Tax Commission, 397 U.S. 664, 668 (1970)

West Virginia State Board of Education v. Barnette, 63 S.Ct. 1178 (June 14, 1943).

Zorach v. Clauson, 72 S. Ct. 679 (April 28, 1952).

References

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Bomboy, S. (2013, Dec 18). The Supreme Court’s thoughts on reindeer and Christmas displays. Retrieved from National Constitution Center: http://blog.constitutioncenter.org/2013/12/the-supreme-courts-thoughts-on-reindeer-and-christmas-displays/COUNTY OF ALLEGHENY, et al v. ACLU, 109 S.Ct. 3086 (July 3, 1989).Engel v. Vitale, 370 U.S. 421 (1962).First Amendment Center. (2015, Nov 20). About the First Amendment. Retrieved from First Amendment Center: http://www.firstamendmentcenter.org/about-the-first-amendmentlaw.cornell.edu. (2015, Nov 29). First Amendment - Constitution. Retrieved from Legal Information Instutute: https://www.law.cornell.edu/constitution/first_amendmentLemon V. Kurztman, 91 S.Ct. 2105 (June 28, 1971).Lynch v. Donnelly, 104 S.Ct. 1355 (March 5, 1984).Marsh v. Chambers, 103 S.Ct. 3330 (July 5, 1983).School Dist. of Abington TP, PA v. Schempp, 83 S.Ct. 1560 (June 17, 1963).Skoros v. City of New York, 437 F.3d 1 (Feb 2, 2006).Staff, H. (2009, November 28). History of Christmas. Retrieved from History.com: 2015Town of Greece N.Y. v. Galloway, 134 S.Ct. 1811 (May 5, 2014).

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West Virginia State Board of Education v. Barnette, 63 S.Ct. 1178 (June 14, 1943).Zorach v. Clauson, 72 S. Ct. 679 (April 28, 1952).

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