III. Religious Liberty
Day 34: The Origins of Religious Liberty (Tues. 4/8)
Key Case: Everson (1947)—NJ authorized local school boards to repay parents with children in private schools for the cost of bus transportation to the schools. 5-4 the Court upheld the statute against an establishment clause challenge, b/c it was a part of general education program which paid for buses for kids attending public and nonpublic schools. Everson sets out a neutrality principle.
Key concepts:
disestablishment—process of getting rid of established churches.
nonpreferentialism—okay for government to support religion as long as doesn’t prefer one sect over another; must do so equally, proportionally. Nonpreferentialism is the idea behind the General Assessment (VA)—everyone pays religion tax—you choose where it goes. Madison defeated this proposal. Note—nonpreferentialism never accepted by SCt—just idea pushed by some in political circles.
general assessment—this was the proposed solution by those favoring Establishment—everyone pays and you designate where your money goes. Atheist could choose school fund.
formal neutrality (Kurland)—government should ignore religion.
substantive neutrality (Laycock)—government should neither encourage nor discourage religious practices—goal should be to minimize gov’t influence on religious practies.
I. Debate over meaning of religion clauses includes very large element of history
A. Religious persecution and civil war in early modern Europe and colonial period
1. Justice Black describes as religions persecuting each other, and certainly religious leaders were guilty.
2. But essential to understand that it was the state that had the power to persecute, and the state often acted for its own reasons. Central lesson may be not that religions persecuted, but that people suffered for their religion.
B. Major debates over church-state relations in Revolutionary period
1. Enlightenment and Great Awakening provided secular and religious reasons to reconsider church-state relations; Revolution and constitution-making provided opportunity.
2. New England: local option establishment; exemptions for dissenters failed to solve problems of Baptists and Quakers.
3. Virginia: general assessment defeated by coalition of Madison, religious minorities, and tax resistance. Similar result in Maryland.
4. Pattern is failed attempts to save establishment by making it nonpreferential (neutral between religious denominations).
C. Little recorded debate over First Amendment. We do know that nonpreferential drafts were rejected.
D. Nonfinancial support of religion: government endorsed generic Protestantism (e.g. blasphemy laws, Sunday closing laws, Thanksgiving Day proclamations, sending missionaries to the Native Americans, schools in the territories).
II. Debate over proper uses of history
A. History surely relevant. But no magic answers, and isolated quotes don’t help much.
B. Founders treatment of financial and non-financial aid yields inconsistent inferences; changed circumstances arguably matter; we cannot escape burden of choice.
III. Competing claims of a unifying principle
A. formal neutrality v. substantive neutrality—Formal neutrality (Kurland) says that gov’t should ignore religion—can treat religion same as other secular entities, while substantive neutrality (Laycock) says gov’t shouldn’t change incentives about religious choices. Formal neutrality allows religion to get shafted by regulation, substantive neutrality dictates exemptions for religious practices under religion. Both views would allow financial aid to go to religious schools.
B. Nonpreferentialism v. noncoercion—nonpreferentialism said okay to support religion if you support all equally, proportionally; noncoercion—gov’t can encourage as long as it doesn’t coerce. O’Connor—noncoercion seen in her view on no gov’t endorsement. Neither nonpreferentialism nor noncoercion concepts accepts the idea of gov’t neutrality to religion—both want gov’t to encourage religion—this is a different understanding of the Establishment clause and Founder’s ideas.
C. Religion always loses vs. religion always wins
Steven’s view is that religion should always lose—no exemptions, no funding. Laycock’s view (substantive neutrality) is the opposite—funding and exemptions.
Day 35: Government Sponsorship of Religious Conduct (Wed. 4/10)
Key cases:
Lee v. Weisman (1992)—state’s involvement in prayer at high school graduation violated the Establishment clause. Court noted although graduation may only be voluntary in the strictest sense, that there was some coercion in requiring people to participate in the school-organized prayer.
Good News (2001)—School board policy allowed for public use of school facilities, except for religious activities. School created a limited public forum. Court—viewpoint discrimination—violates free speech clause. School worried with Establishment clause—Court says not an issue b/c club meetings were after school hours, permission slips from students. School was also open to other clubs. Court—you’re not treating religion neutral.
Key concepts:
coercion—gov’t shouldn’t coerce people to participate in religious worship
endorsement—gov’t should not endorse a fundamental view on religion
neutrality—idea that religion should not be treated worse than comparable secular
I. More relevant history
A. Some evidence that noncoercive endorsements of religion were viewed as establishments, if the endorsement was controversial. Va. Episcopal Incorporation Act and SC Constitution of 1778.
B. History of school prayer. Protestant Bible in nineteenth centry—reading King James Bible without note or comment—led to mob violence and church burnings, state constitutional amendments, failed Blaine Amendment.
II. School-sponsored prayer establishes religion
A. Court notes coercive effect on children of religious minorities. But coercion not required in Engel and Schempp (cases declaring school sponsored prayer violated Est. clause). Essence of violation is government sponsorship or endorsement.
B. Government sponsored religious observance is watered down or misrepresented as secular. “Nonsectarian” prayer repeats the strategy of the Protestant Bible controversy.
Note—we don’t really agree how to pray. e.g. Pray to God? Pray to JC? Another problem—we don’t all agree to pray—battle today between nonbelievers and believers.
C. Does exclusion of religion establish secular humanism?
1. Doesn’t teach the faith tenets of secular humanism.
2. But official silence about religion may be taken as indicating its unimportance or irrelevance. (This argument used by religious community).
D. Lee v. Weisman has four votes for Schempp and one vote for the view that graduation prayer is unconstitutional because it is coercive.
1. Coercion and endorsement are sensibly viewed as competing alternatives.
2. Endorsement makes sense as applied to government communications. Makes little sense as applied to government regulation, exemption, spending
3. Scalia views coercion as criminal penalties; Kennedy extends it to include proselytizing.
Santa Fe ISD—school prayer at football games unconstitutional. Majority vote to choose a person to pray—school can’t argue this is free speech when limited to one person.
Note—5th Cir. has upheld senior class vote to have prayer at graduation.
Note—11th Cir has upheld a student election for a message at graduation. Difference with Santa Fe—elections weren’t all going the same way and some speakers didn’t use the time for prayer.
III. Private prayer on school grounds
Congress passed Equal Access Act—if school lets other non-curriculum based clubs meet on school property, cannot exclude religious clubs.
A. Voluntary student prayer clubs
1. They benefit from the use of school facilities and access to potential recruits.
2. But excluding them discriminates against religious speech.
B. Moments of silence. May be constitutional, but very hard to implement. Purely private thought is the ultimate open forum, but class is captive audience for teacher’s introduction, which is very hard to do neutrally. Note—Court has struck down moment of silence laws that were drafted ostensibly to allow prayer in the classroom (see Wallace v. Jaffree—Alabama statute). Court has also struck down law requiring posting of Ten Commandments in the classroom (see Stone v. Graham—Kentucky statute)
Day 36: Public Religious Displays (Mon. 4/15)
Key cases:
Lynch v. Donnelly (1984)—(5-4 decision) very dishonest opinion in which CJ Burger says that Christ child is secular and a mere historical character and that the city is recognizing the origins of the holiday and that is a secular purpose. O’Connor’s concurrence sets up her endorsement test—the gov’t cannot send a message to nonbelievers that they suck. She says nativity scene just a recognition of the holiday, not an endorsement.
Pinette (1995)—KKK put cross on Ohio capitol grounds. Scalia for plurality, gov’t can’t endorse religion, but can treat neutrally private religious expression. O’Connor’s concurrence points out that if a reasonable observer would think the cross an endorsement, they would have to declare the cross an endorsement. Since area was used for many displays for private speech, cross was not a problem.
I. Gov’t sponsored religious observances: passive displays and outside schools.
A. Honest ways to write Lynch v. Donnelly (i.e.—not the way the Court wrote it).
1. Non-coercive endorsements are okay; passive displays are non-coercive. Schempp (no state sponsored school prayer) depends on coercion and Stone v. Graham (ten commandments law is unconstitutional) is overruled.
2. Non-coercive endorsements are okay outside schools. Nothing is overruled.
B. Court’s approach to Lynch v. Donnelly
1. Majority: Christ child is secular and benefit to Christianity is indirect and remote. Laycock—either the gov’t is serious and this is an establishment, or it’s not serious and they are co-opting religious symbols for their own purposes.
2. O’Connor: Even noncoercive endorsement sends message to religious minorities that they are outsiders, not full of polity. But no endorsement here!—O’Connor says this is just the city recognizing a public holiday.
3. Dissenters: crèche is religious, but religious slogans lack significant religious content.
Later in Alleghney v. ACLU (1989) Court develops what is known as the “2 Reindeer Rule.” Creche not ok b/c by itself—wholly religious. Menorah ok b/c Christmas tree was also present. This rule has been ridiculed. Okay to have religious symbols as long as you water then down with secular crap such as Santa, elves, and so on.
C. Dilemma for all nine justices
1. Government religious observance either endorses religion or it misappropriates and desacralizes sacred symbols.
2. Court gets both: Endorsement of Christianity in fact, desacralization in law.
3. Only reason for city to litigate this case is to endorse Christianity. Private crèche in public forum would serve all other purposes.
II. Religious symbols placed in public forum by private parties
A. Free speech? Viewpoint discrimination to exclude private religious displays from forum where other private displays are permitted.
B. Evasion of Establishment Clause? Those who objected claim that an unattended religious display is more attributable to government, because the private speaker is not visible.
C. Invitation of offensive symbols, like KKK cross? Unfortunately, yes. Striking that Ohio thought it better strategy in KKK case to oppose religious speech than to oppose hate speech.
III. Laycock’s proposed test: Establishment Clause forbids government to take position for or against religion in its own speech; any religious observance takes a position. Free Speech and Free Exercise Clauses protect religious speech by private citizens, including in public fora, subject to same standards applied to other high value speech.
Laycock’s practical solution—gov’t should close on Christmas, let Chamber of Commerce and other private orgs. put up signs and stuff if they want to.
Day 37: Public Money and Religious Neutrality (Tues. 4/16)
Key cases:
Mueller v. Allen (1983)—Minn. law gave tax deduction for education expenses for elementary and secondary schoolchildren. 5-4, Court upheld this b/c purpose was secular and also relied on the fact that the deduction was available to all parents—those with kids in public or private schools. Private choices made by parents are not violation of establishment clause. Mueller is all about neutrality. Dissent—this isn’t neutral b/c the deduction for tuition can really only be used by parents sending brats to private schools and public school parents don’t pay tuition. Deduction for books and transportation were de minimis.
Rosenberger (1995)—(5-4) religious publication at UVA is entitled to funding b/c all other school publications get funding. Court also notes that money goes to printer, but this probably doesn’t matter in order for the decision to come out this way. Any benefit to religion was incidental to the policy of paying for student publications.
Mitchell v. Helms (2000)—Thomas’s plurality opinion suggests that gov’t money given to religious or areligious groups should not automatically be considered unconstitutional b/c gov’t is not responsible for indoctrination. Upheld statute allowing state ed. Agencies to give $ to nonpublic schools for books, libraries, computers.
Agostini (1997) Overruled Aguilar (which held that public school teachers (for remedial ed.) in parochial schools unconstitutional). O’Connor—can’t presume that b/c public employee is on parochial school property that there is gov’t indoctrination or symbolic union of gov’t and religion. Not all gov’t aid that helps religious schools is invalid.
Key concepts:
nondiscrimination theory—it’s okay to fund religious orgs. or schools as long as you do so in a way that doesn’t discriminate
no aid theory—idea that any $ given to religious orgs. or schools violates establishment clause
substantive neutrality—see Day 34 and Day 39—Chart
secular value for gov’t money—it’s okay for gov’t to give $ to religious schools b/c there is a secular purpose—educating children; this argument the same for soup kitchens, drug rehab and other charitable services run by religious organizations
I. Common premise that government must be neutral as between religion and non-religion
A. No-aid theory—baseline of the gov’t doing nothing is neutral; as compared to that, all funds are aid.
B. nondiscrimination theory—baseline of how gov’t treats similar activity by secular organization is neutral; gov’t should give equal support to the activity whether performed by a religious or a secular organization.
C. Neither nonpreferentialism nor endorsement/coercion debates help much here (in the area of funding).
D. Substantive neutrality attempts to draw a baseline by looking to incentive effects. Gov’t should minimize its influence on religion. (Laycock’s theory).
II. Court has oscillated between these baselines for fifty years, generating much confusion.
A. Compare uses of neutrality in majority and dissent in Mueller.
B. Child benefit theory shifted toward nondiscrimination theory if money is routed through schools.
C. Tracing theory (money to school is okay if traceable to safely secular function) tried to have it both ways and generated famous conundrums under Lemon, e.g. books ok, but not maps. Sen. Moyinahan—What about an atlas?
D. Little bit theory—why are tax deductions ok but tax credits bad? Why does it matter in Agostini that program does not displace spending by religious schools?
E. Compartmentalization—free speech cases got nondiscrimination rule; finance cases often got no-aid rule.
F. Rosenberger squarely presented choice between two big picture understandings of neutrality. Is neutrality giving money to all student publications? Or is neutrality with regards to religion mean not giving $ to religious publications? Court goes with former.