Religious Freedom

The Establishment Clause

William Allan Kritsonis, PhD

Establishment Clause Jurisprudence

• The Court's decisions here tend to be the most controversial and the most and inconsistent in terms of legal reasoning.

• A few important cases in the 1940's but most establishment clause cases came to the court starting in the 1960's to date.

Underlying judicial reasoning

• 1. to avoid denominational hostilities among a heterogeneous population.

• 2. a concern with religion staying private and personal.

• 3. respect for feelings of the few who may be ostracized because of unconventional religious beliefs.

Wall of separation between Church and State

• What does this phrase mean? That is:• How did Jefferson mean it in the famous 1802

letter to the Danbury Baptists?• How did other framers understand the

establishment clause?

Wall of separation between Church and State

• What does this phrase mean? • Separatist: a solid wall of separation between

religion and government (church & state).• Accommodationist (2 versions):

• Nondiscriminatory support or aid of all religions constitutionally permissible.

• Establishment Clause only bars the adoption of an official national religion.

Original intent of framers

• Many studies have shown that the framers disagreed on the meaning of establishment, but the majority likely agreed with an accommodationist position, as the text notes (p. 145).

• Yet those who were most influential in drafting the 1st Amendment – Jefferson & Madison – were separatists.

• Therefore, it is difficult to use the intent of the framers as a guideline.

Two perspectives on establishment framers’ intent

• Non-preferentialist – consistent with the accommodationist position

• Preferentialist – consistent with the separatist position.

Non-preferentialists

• Non-preferentialists argue that the framers did not intend to end government support of religion, only support that gives preference to one denomination over another.

• They argue that many court rulings instead of being neutral to religion, have been hostile, with government favoring non-religion over religion. To be neutral, government should support religious activities the same as it supports nonreligious.

Non-preferentialists

• In addition, they believe the framers intended for the 1st Amendment only to bar the establishment of a national church. Federal action that benefits several religions is permissible.

• They argue that the framers saw religion as important to government, because it instills important civic values like honesty. You can see this reasoning in the dissent of Justices Burger and Rehnquist in Wallace v. Jaffree.

Preferentialists

• Preferentialists argue that – at the time of the framing of the 1st Amendment, state governments already were rejecting formal church establishment, but most still provided aid to churches on a non-preferential basis. This was the status quo situation that the framers intended to restrict. Otherwise, there would have been no need to add this provision in the Bill of Rights.

• They believe that government should be neutral between religion and non-religion.

Preferentialists

• Appears to have been Madison’s view, both while he was in Virginia and later in the White House. Like Jefferson, he opposed setting up a national holiday to thank God (Thanksgiving) and the appointment of chaplains for Congress and the military, on the grounds that they violated the establishment clause.

Everson v. Board of Education (1947)

• Facts of the case:

Everson v. Board of Education (1947)

• Facts of the case:• A New Jersey law permitted local school boards to

cover transportation costs for children attending either public or private nonprofit schools. One town reimbursed parents for transportation costs to its four Catholic schools. Taxpayer Arch Everson filed a suit against the board of education, challenging this as a violation of the establishment clause.

Everson v. Board of Education (1947)

• Court ruling:

Everson v. Board of Education (1947)

• Court ruling: 5/4 not a violation.

• Court reasoning: authored by Justice Black.

Everson v. Board of Education (1947)

• Court reasoning: The establishment clause means government can’t set up a church, pass laws to aid one religion or all religions, give preference to a religion, levy a tax, compel church attendance, etc. “In the words of Jefferson, the clause was intended to erect a wall of separation between church and State.... that must be kept high and impregnable.” In this case, he ruled, the wall had not been breached. The program was general and benefited children. Black drew a parallel with police and firemen providing services.

Everson v. Board of Education (1947)

• Dissents?

Everson v. Board of Education (1947)

• Dissent (Jackson): Majority ignores how key education is to the Catholic faith. This aid is the same as if given directly to the Church. Program is not neutral because it covers only public or private Catholic schools (not private secular or other religion). The analogy about firemen and police is flawed. The true analogy is if “the police shall protect pupils on the way to or from public schools and Catholic schools but not while going to or coming from other schools.” The tax benefit essentially sets up a religious test.

Everson v. Board of Education (1947)

• Dissent (Rutledge): “Any law respecting an establishment of religion is forbidden.” The 1st amendment requires “a complete and permanent separation of the spheres of religious activity and civil authority.” Free exercise & establishment clauses correlate, and any government tax support interferes with individual free exercise. These funds raised by taxation & used to encourage religious instruction.

Everson ruling outcomes

• Applied the Establishment Clause to the states through the 14th amendment.

• Stressed certain core ideas: wall of separation in general, but Court would consider if purpose of the aid is secular; beneficiaries are children, not religious institutions; & state is neutral in relations between believers and non-believers.

• Illustrated how controversial this area would become (text, pp. 151-152).

Everson test & different rulings

• Court sent mixed signals after Everson.• Table 4-1: In the seven establishment clause

cases from 1947 to 1968, half reflected an accommodationist view and half a separatist view.

• Emerging test articulated in Abington Township v. Schempp (1963)

Emerging test in Abington Township

• Two questions:• What is the purpose of the law?• What is the primary effect of the law?

To be constitutional, it must have a secular legislative purpose and neither advance nor inhibit religion.

Emerging test after Walz v. Tax Commission of NYC (1970)

• The Burger Court’s first establishment case upheld a state property tax exemption for religious institutions against a taxpayer challenge. Burger introduced a third question: was there an excessive government entanglement with religion? In this case, the entanglement greater if no tax exemption. The exemption reinforced the separation between government and religion.

Lemon v. Kurtzman/Earley v. DiCenso (1971)

• Facts of the case:

Lemon v. Kurtzman/Earley v. DiCenso (1971)

• Facts of the case: Pennsylvania state law reimbursed nonpublic schools for teaching salaries, books and secular instructional materials for courses in math, language and physical education. Lawsuit filed by Alton Lemon, a taxpayer and father of a child in public school.

• Rhode Island supplemented the salary of nonpublic school teachers who agreed not to teach religious subjects. It turned out that all worked at Catholic schools. Program challenged by the American Jewish Congress.

Lemon v. Kurtzman/Earley v. DiCenso (1971)

• Court ruling: 8-0; 8-1 to strike down the laws.

• Court reasoning:

Lemon v. Kurtzman/Earley v. DiCenso (1971)

• Court reasoning: Burger brought together the three criteria in earlier cases to create the Lemon test:

• 1. the statute must have a secular legislative purpose.

• 2. its primary effect must be one that neither advances nor inhibits religion.

• 3. it must not foster “an excessive government entanglement with religion.”

• Where did these statutes fail this test?

Lemon v. Kurtzman/Earley v. DiCenso (1971)

• First prong - secular legislative intent – fine.• Second prong - primary effect – unclear• Third prong – excessive government entanglement –

clearly fails. To monitor compliance, government has to be continuously involved in examining church records & surveilling teachers. Further, in Pennsylvania, the funds go directly to the schools, not the teachers or parents.

• A broader entanglement also arises, because of the “divisive political potential of these state programs.” Could result in political campaigns based on people's religious faith.

Lemon v. Kurtzman/Earley v. DiCenso (1971)

• Concurrence (Douglas): Tax payer funds cannot be used even for the secular portion of a parochial school, because a school is a single organism operating under one budget. Public subsidies of secular activities frees up funds for those schools to use for religious instruction.

Lemon v. Kurtzman/Earley v. DiCenso (1971)

• Dissent in DiCenso (White): the plaintiffs provided no evidence that non-secular lessons were taught in secular classrooms in religious schools. He argued that the 1st amendment permits state funds to supplement salaries of teachers of secular subjects.

Cases in the 1980s & early 1990s

• Aguilar v. Felton (1985)

• Zobrest v. Catalina Foothills School District (1993)

• Board of Education of Kiryas Joel Village v. Grumet (1994)