a unit plan for teachers - close up foundation · stage 3 – learning plan ... lesson procedures:...

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LO O K I N G AT F R E E D O M O F R E L I G I O N A N D

T H E 1 S T A M E N D M E N T

A U n i t P l a n f o r Te a c h e r s

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STAGE 1 – DESIRED RESULTS

Established Goals:

National Standards for History

Standard 1A. The student understands the guarantees of the Bill of Rights and its continuing significance.

National Standards for Civics and Government

II.A.1: The American idea of constitutional government. Students should be able to explain the central ideas of American constitutional government and their history.

II.A.2: How American constitutional government has shaped the character of American society. Students should be able to explain the extent to which Americans have internalized the values and principles of the Constitution and attempted to make its ideals realities.

II.B.1: Distinctive characteristics of American society. Students should be able to explain how the following characteristics tend to distinguish American society from most other societies.

Common Core State Standards

CCSS.ELA-LITERACY.RH.11-12.1. Cite specific textual evidence to support analysis of primary and secondary sources, connecting insights gained from specific details to an understanding of the text as a whole.

CCSS.ELA-LITERACY.RH.11-12.2. Determine the central ideas or information of a primary or sec-ondary source; provide an accurate summary that makes clear the relationships among the key details and ideas.

CCSS.ELA-LITERACY.RH.11-12.9. Integrate information from diverse sources, both primary and secondary, into a coherent understanding of an idea or event, noting discrepancies among sourc-es.

CCSS.ELA-LITERACY.SL.11-12.1a. Come to discussions prepared, having read and researched ma-terial under study; explicitly draw on that preparation by referring to evidence from texts and other research on the topic or issue to stimulate a thoughtful, well-reasoned exchange of ideas.

CCSS.ELA-LITERACY.SL.11-12.1b. Work with peers to promote civil, democratic discussions and decision-making, set clear goals and deadlines, and establish individual roles as needed.

CCSS.ELA-LITERACY.SL.11-12.1c. Propel conversations by posing and responding to questions that probe reasoning and evidence; ensure a hearing for a full range of positions on a topic or issue; clarify, verify, or challenge ideas and conclusions; and promote divergent and creative perspectives.

CCSS.ELA-LITERACY.SL.11-12.1d. Respond thoughtfully to diverse perspectives; synthesize com-ments, claims, and evidence made on all sides of an issue; resolve contradictions when possible; and determine what additional information or research is required to deepen the investigation or complete the task.

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Understandings:Students will understand that…• Different groups and individuals

understand the Bill of Right’s provisions regarding the relationship between church and state differently

Essential Question:What should the establishment clause in the First Amendment mean in modern U.S. so-ciety?

Students will know…• The role played by Thomas Jefferson in shaping the First Amendment and the understanding

of the establishment clause• The Supreme Court has reinterpreted the First Amendment over time

Students will be able to…• Develop and defend their understanding of the First Amendment’s establishment clause


STAGE 3 – LEARNING PLAN

Performance Tasks:• Students will engage in a class-wide de-

bate about the responsibility of one gen-eration for the policies of previous genera-tions. Students will also write an essay that explains how their views of the founding fathers are shaped by the content of this unit.

Other Evidence:• Group products, such as document analy-

ses and predictions, and individual tasks such as responses to reflection questions

• Homework, including a response to a news article about the anniversary of the War of 1812

STAGE 2 – ASSESSMENT EVIDENCE

Performance Tasks:• Short lectures followed by small group discussions• Debate• Reading, discussing, and analyzing primary and secondary source documents• Small group work

SUGGESTED GRADE LEVEL: 11 - 12


Overview: After being introduced to the themes and central questions of the unit, students will consider founding-era documents that help to make sense of the First Amend-ment’s Establishment Clause.

Estimated Time: 90 minutes

Lesson Procedures:

Establish unit theme (10 minutes)

Think-Pair-Share on the following questions:• Do freedom of religion and freedom from religion mean different things?

• What does it mean for a government to “establish a religion”? How is that different from “promot-ing a religion”?

Take a few responses to the second question. Explain: During this unit, we will examine the Establishment Clause of the First Amendment. Our central question will be:What should the Establishment Clause in the First Amendment mean in modern U.S. society?

Jefferson and the Danbury Baptists (25 minutes)Tell the students that they will watch a short segment of a long PBS documentary about the history of religion and religious life in the United States. They should know that anything that the actors/interpreters say is taken from diaries, letters, or other sources of the historical record.

Watch the first fifteen minutes of Part Two (A New Eden) of PBS’s God in America. Found here (14 minutes and 38 seconds in is a good stopping point): http://www.pbs.org/godinamerica/view/ As they watch, ask them to consider the following questions:• What do you hear that still has resonance (or that still echoes) today?

• What did Thomas Jefferson think “separation of church and state” meant?

Ask students to discuss their responses in pairs or groups of three.

Additionally, students should discuss the following question: How important should the Founders’ ideas be in today’s debates over the Bill of Rights?

LESSON # 1 – JEFFERSON, THE DANBURY BAPTISTS, AND THE BUILDING OF A ‘WALL’


Examine early documents (25 minutes)Place students in pairs. Give each pair either Attachment A (Jefferson’s letter to Danbury Baptists) or Attachment B (Virginia Statute on Religious Freedom).

Give each pair a tool for document analysis (such as Attachment C).

Instruct students to do a close analysis of the document and to record their findings.

Synthesize (15 minutes)Combine each A pair with a B pair to form groups of four. Ask each group to respond to the following questions using information from both documents:• How do these documents inform your thinking about the term “separation of church and state”?

• In your opinion, does the First Amendment go as far as Jefferson would have liked in protecting religious liberty? Explain your response.

Does the relationship between church and state today reflect Jefferson’s values? Why or why not?

Individual Reflection (10 minutes)Ask students to record their responses to the following question:• When you think of the relationship between church and state today, what specific things do you

think about? (sample answers might include: the “under God” in the Pledge of Allegiance, “In God We Trust” on money, opening legislative sessions with a prayer, laws banning politics from the pulpit, etc.)

Homework (10 minutes)Explain to students that during the next class meeting they will be discussing and deliberating on the meaning of the Establishment Clause in today’s society.

To prepare for that, their homework is to do a short survey, and to survey at least one person who is not a classmate (a member of this specific class – it could be a fellow student). It could be a parent, other family member, coach, religious leader, or even another teacher or school official.

Give each student at least two copies of the attached survey. (Attachment D)


LESSON # 2 – THE ESTABLISHMENT CLAUSE TODAY

Overview: Students will first review their homework from the previous class meeting. Then, after a brief introduction to the lesson, engage in a Structured Academic Controversy around the freedom of religion and the Establishment Clause. Af-terwards, students will participate in open-ended deliberation about the prop-er meaning and application of the Establishment Clause.

Estimated Time: 90 minutes

Lesson Procedures:

Review homework (10 minutes)Place students in pairs and ask them to review their findings from the homework assignment. Students should first share their responses to the survey, then share the responses of those they surveyed.

Students should discuss the following question: What ideas, themes, and facts seem most important to discussing the unit’s central question? (which is: What should the Establishment Clause in the First Amendment mean in modern U.S. society?)

Introduce lesson (10 minutes)Explain to students that they will be examining several issues that have tested America’s understand-ing of the Establishment Clause.

To help in this, it will be good for students to understand one of the major tests that the Supreme Court uses to make sense of Establishment Clause cases. That test is called the Lemon test (named for Alton Lemon, the lead plaintiff in Lemon v. Kurtzman, 1971). The test has three parts, or prongs: (Note: It may help future discussions to post these in a place that is visible to the students)• The statute must not result in an “excessive government entanglement” with religious affairs.

(also known as the Entanglement Prong)• The statute must not advance or inhibit religious practice (also known as the Effect Prong)• The statute must have a secular legislative purpose. (also known as the Purpose Prong)

In the discussions that students will have, they do not have to use the Lemon test, but it may help them to know what it is. Students may wish to alter the test (or one of its prongs), ignore one prong entirely, add a new prong, or ignore the test completely.


Additionally, students should be familiar with the Endorsement Test, proposed by conservative Justice Sandra O’Connor in 1984 (Lynch v. Donnelly):• The Establishment Clause prohibits government from making adherence to a religion relevant in

any way to a person’s standing in the political community. Government can run afoul of that pro-hibition…[by] endorsement or disapproval of religion. Endorsement sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompa-nying message to adherents that they are insiders, favored members of the political community. The proper inquiry under the purpose prong of Lemon, I submit, is whether the government intends to convey a message of endorsement or disapproval of religion.

Like the Lemon tests, students may reject this test or borrow ideas from it as they see fit.

Check for understanding on both tests.

Develop expertise on a case study (20 minutes)

Distribute Attachments E-H so that each student has one article. Students should read their assigned article and begin to respond individually to the questions at the end.

When all or most students have finished reading, place students in groups of four so that all students have the same article. Students should discuss their answers to the questions. They do not have to come to the same conclusions about the issue presented in their article.

Alert students that they will soon move to mixed groups. When they do that, they need to be able to explain their case study, their own opinions, and the opinions of those with whom they disagree. This means that if all students in a group agree, they need to consider what arguments their oppo-nents might make.

Combine groups (40 minutes)

Create groups of four by combining a student who read article E, article F, article G and article H. In these groups, students should share details about their case, explain their position, and explain the reasoning of those who may take a different position. Students should then discuss whether the Lemon and Establishment tests served as good ways to interpret the Establishment Clause and to make sense of the “wall between church and state.”

In these groups, students will then think about the tests the Court uses to guide its rulings. Students will be asked to critique the tests and then write a new one. (If students decide they want to keep one test exactly as is, they should use the space provided to write a defense of their chosen test.)Give students Attachment I to guide the test creation process.

Homework (10 minutes)

Students should write a persuasive essay defending their newly created test. In doing so, they should explain why their test is better than the tests it is replacing. Additionally, they should explain how Founders’ ideas about the separation of church and state influenced, or did not influence, their work.

They should then apply their new test to one of the contemporary issues examined during class.


Attachment A: Excerpts from Thomas Jefferson’s letter to Connecticut Danbury Baptists (http://www.loc.gov/loc/lcib/9806/danpost.html)

To messers Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson, a committee of the Danbury Baptist association in the state of Connecticut.

Gentlemen,

The affectionate sentiments of esteem & approbation which you are so good as to express towards me, on behalf of the Danbury Baptist association, give me the highest satisfaction. My duties dictate a faithful & zealous pursuit of the interests of my constituents, and, in proportion as they are per-suaded of my fidelity to those duties, the discharge of them becomes more & more pleasing.

Believing with you that religion is a matter which lies solely between man & his god, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establish-ment of religion, or prohibiting the free exercise thereof;” thus building a wall of eternal separation between Church & State. Congress thus inhibited from acts respecting religion, and the Executive authorised only to execute their acts, I have refrained from prescribing even those occasional perfor-mances of devotion, practiced indeed by the Executive of another nation as the legal head of its church, but subject here, as religious exercises only to the voluntary regulations and discipline of each respective sect,

[Jefferson first wrote: “confining myself therefore to the duties of my station, which are merely tem-poral, be assured that your religious rights shall never be infringed by any act of mine and that.” These lines he crossed out and then wrote: “concurring with”; having crossed out these two words, he wrote: “Adhering to this great act of national legislation in behalf of the rights of conscience”; next he crossed out these words and wrote: “Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience I shall see with friendly dispositions the progress of those sentiments which tend to restore to man all his natural rights, convinced that he has no natural rights in opposition to his social duties.”]

I reciprocate your kind prayers for the protection & blessing of the common father and creator of man, and tender you for yourselves & the Danbury Baptist [your religious] association assurances of my high respect & esteem.

Th JeffersonJan. 1. 1802.


Attachment B: Virginia Statute on Religious Freedom (http://www.pbs.org/jefferson/archives/documents/ih195802.htm)

I. Whereas Almighty God hath created the mind free;

That all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coer-cions on either, as was in his Almighty power to do;

That the impious presumption of legislators and rulers, civil as well as ecclesiastical, who being them-selves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavouring to impose them on others, hath established and maintained false religions over the greatest part of the world, and through all time;

That to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical;

That even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor, whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness, and is with-drawing from the ministry those temporary rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labours for the instruction of mankind;

That our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry;

That therefore the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which in common with his fellow-citizens he has a natural right;

That it tends only to corrupt the principles of that religion it is meant to encourage, by bribing with a monopoly of worldly honours and emoluments, those who will externally profess and conform to it;

That though indeed these are criminal who do not withstand such temptation, yet neither are those innocent who lay the bait in their way;

That to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of the tendency will make his opinions the rule of judgment; and approve or condemn the sentiments of others only as they shall square with or differ from his own;

That it is time enough for the rightful purposes of civil government, for its officers to interfere when principles break out into overt acts against peace and good order;


And finally, that truth is great and will prevail if left to herself, that she is the proper and sufficient antagonist to error and has nothing to fear from the conflict, unless by human interposition dis-armed of her natural weapons, free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them.

II. We the General Assembly of Virginia do enact, that no man shall be compelled to frequent or sup-port any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molest-ed, or burthened in his body or goods, not shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, that that the same shall in no wise diminish, enlarge, or affect their civil capaci-ties.

III. And though we well know that this Assembly, elected by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding Assemblies, constituted with pow-ers equal to our own, and that therefore to declare this act to be irrevocable would be of no effect in law; yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present, or to narrow its operation, such act will be an infringement of natural right.


Attachment C: Document Analysis1

Document: ________________________________________

TEXT CONTEXT

1 This type of document analysis was suggested by Bruce Lesh in Why Won’t You Just Tell Us the Answer? There are many other tools available to help students analyze documents. For some other suggestions, see the worksheets provided by the National Archives at http://www.archives.gov/education/lessons/worksheets/.

SUBTEXT CONCLUSIONS


Attachment D: Survey on Religion in America

To what extent do you agree with the following statements?

It is okay if government meetings open with a prayer.

Strongly Disagree Disagree Neither Agree nor Disagree Agree Strongly Agree

It is not okay for public tax dollars to be used to pay tuition at religious high schools.


Patriotism is an important American value.


It is fine for publicly funded art to include religious imagery and symbols.


The United States has a long-established Christian heritage – Judeo-Christianity is a part of our cul-ture.


The First Amendment established a strict wall between church and state.


A town government should not be allowed to sponsor religious celebrations (such as Christmas or Hannukah).



Attachment E

Tradition! Today’s legislative prayer decision in Plain English2

Today, the Court added another ruling to this Term’s list of highly contentious cases: by a vote of five to four, the Court rejected a challenge to a New York town’s practice of beginning its town council meetings with a prayer. In an opinion by Justice Kennedy, the majority regarded the town’s practice as just the latest chapter in a long tradition of such prayers by Congress and the states. Justice Elena Kagan’s lead dissent painted a very different picture, characterizing the prayer practice as a betrayal of the principle that the government will treat all Americans the same, regardless of their religion…

Nearly thirty years ago, in a case called Marsh v. Chambers, the Supreme Court held that the Nebraska legislature’s practice of beginning its sessions with a prayer by a chaplain who was paid by the state did not violate the Constitution. As I explained in my preview of the case last fall, the Town of Greece argued that the decision in Marsh makes this an open-and-shut case, so that its own prayer practice is clearly constitutional. Today, by a bare majority, the Court agreed.

Emphasizing that a key factor in determining whether a specific religious practice is constitutional is whether there is a historical tradition of such practices, and in particular whether the drafters of the Constitution would have accepted that practice, the Court framed the question before it as whether the prayers offered at the town council meetings in this case “fit[] within the tradition long followed in Congress and the state legislatures.” Susan Galloway and Linda Stephens, the two women chal-lenging the town’s prayer practice, told the Court that this practice does not, for two reasons.

First, they argued, the Court’s decision in Marsh did not authorize prayers, like those in the town’s meetings, that contain language or themes unique to a specific faith – for example, references to Christ or Jesus. But, the Court countered today, nothing in the Court’s decision in Marsh suggested that legislative prayer can only be constitutional if it uses “neutral” language that refers “only to a generic God.” To the contrary, the members of Congress who wrote the First Amendment would have expected prayers to contain exactly the kind of “explicitly religious themes” about which Galloway and Stephens complained. And it doesn’t matter that many more religions are now repre-sented in the United States than back then. The chaplains who offer prayers now at Congress still use very religious language, but the important thing is that they come from all different faiths – not just Christianity. And requiring prayers to use only generic language would put the legislative bodies that sponsor them in the unattractive position of having to enforce that rule, which in turn would result in far more government involvement in religion than there currently is. Moreover, the Court continued, you can’t please everyone just by limiting the prayers to “seemingly general references to God or the Father,” because that might offend citizens who either don’t believe in God at all or believe in more than one God. But, the Court went on to emphasize, even if legislative prayers do not have to be “neutral,” that does not mean that the chaplains who offer them can say whatever they want. The Court observed that prayers like the ones in this case, which are offered at the begin-ning of the town council meeting, are intended to “lend gravity” to the meeting and should be “sol-emn and respectful in tone.” However, the Court cautioned, prayers which are instead used as an opportunity to condemn or try to convert people who are not members of a particular religion (which were not used in the Town of Greece) would not serve that purpose and – the Court sug-gested – might run afoul of the Constitution. And the Court gave little weight to the fact that the chaplains who offered prayers were overwhelmingly Christian: what really matters, the Court stressed, is that the town cannot (and did not) discriminate in selecting chaplains. The Constitution does not require it to search outside the town for chaplains from other faiths.2 Excerpted from: ScotusBlog, by Amy Howe; accessed here: http://www.scotusblog.com/2014/05/tradition-todays-legislative-prayer-decision-in-plain-english/


…The Court then moved on to the challengers’ second argument: that their case was different from Marsh because residents attended town council meetings to participate themselves – for example, to try to obtain a zoning variance or a permit, or to speak on an important local issue – and would feel pressured to participate in the prayers. By contrast, they noted, virtually all of the work done by the Nebraska legislature involved only the legislators themselves, with the spectators there just to watch the proceedings. But the Court did not find this distinction persuasive. In a section of the opinion joined only by the Chief Justice and Justice Alito (more on this below), Kennedy explained that legislative prayers have a long history in the United States; as a result, most people understand that they are offered primarily for the benefit of the lawmakers themselves, rather than as part of a government-sponsored effort to bring religion into everyone’s lives. It would be a different story, Kennedy acknowledged, if the members of the town council instructed people at the meeting to pray, shamed anyone who declined to pray, or suggested that their decisions might somehow hinge on whether someone did pray, but none of those scenarios had happened in the Town of Greece. Although Galloway and Stephens may have alleged that they were offended by the prayers, merely being offended does not violate the Constitution.

Justice Thomas agreed with most, but not all, of Justice Kennedy’s opinion. He wrote a separate opinion (which Scalia joined in part) to explain that, in his view, the whole case should be a non-issue because the First Amendment’s Establishment Clause does not even apply to states and local govern-ments like the Town of Greece: because it provides that “Congress shall make no law respecting an establishment of religion,” it applies only to Congress. And Thomas would require much more than “subtle pressure” before the government’s conduct could violate the Constitution; only “actual legal coercion,” such as requiring someone to go to church or imposing taxes to pay for the church, would qualify.

Justice Stephen Breyer filed a dissenting opinion that focused on the facts of the case, but the main dissent came from Justice Elena Kagan, who was joined not only by Breyer but also by Justices Ruth Bader Ginsburg and Sonia Sotomayor. (Interestingly, Kagan, Breyer, and Ginsburg are all Jewish; the five Justices who voted in favor of the prayers are all Catholic, as is Sotomayor.) Kagan started with what she saw as the “big picture”: our country’s practice of “religious equality—the breathtakingly generous constitutional idea that our public institutions belong no less to the Buddhist or Hindu than to the Methodist or Episcopalian.” Today’s ruling, she contended, violated that principle.

Kagan began by agreeing with the majority that there is a long history of legislative prayers. She also agreed that the real question before the Court in this case boils down to whether the town’s prayer practice is in line with that tradition. And this is where she parted ways with the majority, because in her view it is not. It mattered to her that, unlike Congress and the Nebraska legislature in Marsh, the Greece town council is a “kind of hybrid”: it acts both as a legislature and a place in which town residents can interact with their government. It mattered to her that, at town meetings, the prayers are directed not at the members of the town council but instead “squarely at the citizens.” And it definitely mattered to her that the prayers offered at the town council meetings are, in her words, “explicitly Christian.”

Questions to Consider• What is the central tension of the case?• Do you agree more with the majority or the dissenting views?• Does the decision align with the Lemon test and the Establishment test? If not, why not?


Attachment F

Excerpted from: School vouchers and the religious subversion of church-state separation3

“Choice” is such a nice word that everybody wants to have it on their side.“Choice” is also a fuzzy word...In the strange language of education politics, “choice” sometimes means advocating the partial privatization of school systems through charter schools. It can also indicate support for voucher programs, which is another thing altogether.

Charter schools are constrained by the same laws and policies that, for example, prohibit public schools from endorsing religion. Vouchers, on the other hand, allow parents to use public money to pay for private, mostly religious schools that are largely unaccountable to the public. So, for example, a voucher school may use your taxpayer dollars to teach its students that the earth is 6,000 years old. And a number of such schools now do just that.

You don’t have to be a constitutional scholar to get that using public money to fund religious schools violates the letter and spirit of the first amendment. Even the radical conservatives in today’s Federalist Society would agree that the US Constitution would not allow the government to cut a check to, say, the local mosque in exchange for supplying education to local schoolchildren. That is why they invented “vouchers”: by pushing the “choice” to use government money to subsidize reli-gion down to the parents, the government can fund religious schools while pretending that it is not.

The strategy of calling something what it isn’t begins at the top. In the Zelman v Simmons-Harris decision of 2002, the conservative majority of the US Supreme Court lined up in a 5-4 decision to rule that an Ohio vouchers program did not violate the clause of the First Amendment that prohibits the government from establishing religion, even though 96% of the students in the program wound up in religiously affiliated schools. The majority claimed that since the parents were free to choose among a variety of schools, the state was not involved in any establishment of religion. In his dissent, Justice Souter observed: “This result violates every objective the Establishment Clause has ever been thought to serve.”

In 2011, the Supreme Court once again used linguistic trickery to strike a blow to the separation of church and state. A group of Arizona taxpayers brought suit against their state for a program that used tax credits as means of delivering money from the government to the religious schools of par-ents’ choice. But the five conservatives on the court argued back that since the program relied on a tax credit to individuals, the plaintiffs’ taxes themselves were not being used for the program – and so they had no standing to sue. Justice Kagan noted that the garbled reasoning behind the majority decision would make it impossible for any taxpayer to object to government support of religion.

You can learn a lot about a policy idea by seeing who its friends are. Advocates of voucher programs include the activist organizations of the religious right, such as the Alliance Defense Fund and Focus on the Family. School choice activist Mae Duggan, founder of a voucher front group called Citizens for Educational Freedom, who presided over a 2010 meeting in San Francisco with representatives of over 300 pro-voucher organizations, made the motivation explicit: “We don’t want people teach-ing humanism. Secular humanism is the basis of the public schools.”

The real money behind the voucher movement, however, comes from real money. Many of the voucher bills passing through state houses are the work of the American Legislative Exchange Council, or ALEC, as well as pro free-market think tanks such as the Heartland Institute and the 3 Katherine Stewart, The Guardian: http://www.theguardian.com/commentisfree/cifamerica/2012/apr/23/school-vouchers-religious-subversion


Heritage Foundation. These organizations engage in aggressive lobbying efforts in favor of what they call “school reform”. They are backed by big oil, Koch Industries, Walmart…

Once upon a time, corporations took an interest in supporting strong universal public education because they understood that the long-term health and competitiveness of the economy depends on an informed and rational citizenry. Some good corporate citizens still hold on to that value system. But they are not the ones driving this bus.

What’s in it for the money people? In part, it’s about the opportunity to make more money. If the public schools are privatized, someone stands to make a lot from government contracts. A more alarming motive, however, is that some of this money hates public education in the same way that the religious conservatives hate it – though with a twist. The religious conservatives hate the teach-ing of evolution and other forms of “secularism” they see in every corner of the schoolroom; where-as the corporations behind ALEC and Heartland oppose the teaching of climate science. They both support efforts to “teach the controversy” in their areas of concern. It’s hard work to get state legis-latures to pass bills undermining the teaching of science – though in Tennessee, they’ve just done that, following the trail blazed by Louisiana. But if you can use vouchers to funnel the money to private schools that have a more convenient opinion on such matters, problem solved – at least, until the earth boils over.

The problem with pretending that you are doing something that you are not is that reality doesn’t have to go along with the game. Voucher programs involve the establishment of religion, and they will inevitably bring with them the harms associated with the undue mingling of church and state. Once government vouchers become a major source of funding for religious institutions, can anyone imagine that the government will not use the power of the purse to curtail teachings of schools run by minority religions that may be considered “cults” or “un-American”? Instead, only perceived majority religions will be allowed to exercise the “right” to teach children according to their own conscience.

In the long run, “school choice” means that students and parents will, in effect, have to choose their religion when they choose their education. The government, in turn, will become captive to the influ-ence of those religious sects that move fastest and acquire the largest share of government funds. And many children will miss out on one of the most valuable lessons that schools can teach: how to get along with those who are different.

Questions to Consider• What is the central argument of the article?• Does the practice of providing vouchers that can be used in religious schools pass the Lemon test? The Establishment test? Why or why not?• In your opinion, do vouchers that go to religious institutions violate the Establishment Clause?


Attachment G

Pledge of Allegiance’s God reference now upheld by court4

In 2002, the U.S. 9th Circuit of Appeals had ruled that the pledge’s use of ‘One nation under God’ made it unconstitutional. The panel now says no federal law requires students to recite it.March 12, 2010|By Carol J. Williams

The Pledge of Allegiance to “one nation under God” doesn’t violate a citizen’s right to be free of state-mandated religion, a divided federal appeals court ruled Thursday in reversing one of its most controversial decisions.

In a 2-1 ruling, the U.S. 9th Circuit Court of Appeals said no federal law requires students to recite the pledge or the religious reference in it. The 9th Circuit had ruled in 2002 in a case brought by Sacramento atheist Michael Newdow that the wording violated the Establishment Clause of the Constitution’s 1st Amendment, which prohibits the enactment of any law or official policy in support of a religion.

A U.S. Supreme Court review in 2004 ducked the constitutional question. The justices threw out Newdow’s lawsuit against the Elk Grove Unified School District, which his daughter attended, on grounds that he lacked standing to sue because he didn’t have primary custody of the girl.

Joined by other Sacramento-area parents opposed to the pledge, Newdow, a physician with a law degree, brought an identical challenge against the Rio Linda Union School District practice of leading daily pledges and secured a ruling in his favor from U.S. District Judge Lawrence K. Karlton. The judge cited the 9th Circuit’s holding that Congress rendered the pledge unconstitutional when it added the words “under God” in 1954, in a Cold War-era gesture against the godless communism of the Soviet Union.

Thursday’s ruling brings the 9th Circuit in line with other federal appeals courts in upholding a school’s right to conduct the patriotic ritual. That unity among the circuit courts makes it unlikely that the Supreme Court will again review the decision, both Newdow and those in favor of preserv-ing the “under God” reference said.

“This is not a politically popular cause and those who would disenfranchise a majority have the power to do it,” said Newdow, who endured virulent scorn and death threats after the 2002 ruling. He conceded that the 9th Circuit reversal could prove the last word in his quest to have the pledge deemed unconstitutional. Despite the bleak outlook, he said he would petition for rehearing by a full 11-judge panel of the 9th Circuit and for Supreme Court review.

In a separate case decided Thursday, the same three-judge panel rejected Newdow’s challenge to the imprinting of “In God We Trust” on the national money, citing a Supreme Court ruling that the phrase constitutes a national motto.

“Not every mention of God or religion by our government or at the government’s direction is a viola-tion of the Establishment Clause,” wrote Judge Carlos T. Bea, citing tax exemptions for religious groups and Nativity displays on government property that have passed high-court review.

4 Excerpted from Los Angeles Times: http://articles.latimes.com/print/2010/mar/12/local/la-me-pledge12-2010mar12


“The Pledge of Allegiance serves to unite our vast nation through the proud recitation of some of the ideals upon which our Republic was founded and for which we continue to strive: one Nation under God – the Founding Fathers’ belief that the people of this nation are endowed by their Creator,” wrote Bea, an appointee of President George W. Bush, who was joined in the decision by Judge Dorothy W. Nelson.

Judge Stephen Reinhardt dissented, writing that “the state-directed, teacher-led daily recitation in public schools of the amended ‘under God’ version of the Pledge of Allegiance...violates the Establishment Clause of the Constitution.”

Nelson and Reinhardt were both appointed by President Carter; Reinhardt was part of the 2-1 major-ity in the 2002 ruling that struck down the pledge as unconstitutional.

Questions to Consider:• What are the central arguments of those wishing to remove ‘under God’ from the Pledge of Allegiance?• Does the inclusion of the phrase ‘under God’ in the Pledge pass the Lemon test? The Establishment test? Why or why not?• Does the inclusion of the phrase ‘under God’ in the Pledge violate the Establishment Clause?


Attachment H

US Appeals Court: ‘In God We Trust’ On Currency Not A Violation Of First Amendment5

May 29, 2014 11:58 AM

NEW YORK (CBS DC) – The U.S. Court of Appeals for the 2nd Circuit ruled on Wednesday that the use of “In God We Trust” on American currency does not violate the Establishment Clause or the Free Exercise Clause of the First Amendment.

In response to a secular lawsuit brought by a primary plaintiff from the Freedom From Religion Foundation, the 3-judge panel concluded that the inclusion of the “In God We Trust” motto on U.S. currency does “not have a religious purpose or advance religion, nor does [it] place a substantial burden on appellants’ religious practices,” reads the Second Circuit ruling.

The primary plaintiff in Newdow v. The Congress of the United States, FFRF member Rosalyn Newdow, collected coins for 40 years, but was compelled to stop purchasing the coins because it excludes nonbelievers who are “substantially burdened” by having to use currency with the motto referencing “God.”

“It’s necessary,” FFRF co-President Annie Laurie Gaylor, said in a statement, “to remind not just the courts but the public that ‘In God We Trust’ is a Johnny-come-lately motto adopted at the height of the Cold War. It was only officially required on all currency in 1955.”

In 2006, the U.S. Senate reaffirmed “In God We Trust” as the national motto, and in 2011, the House passed an additional resolution reaffirming its use as the motto.“It’s not even an accurate motto,” she continued. “To be accurate, it would have to say, ‘In God Some of Us Trust,’ and wouldn’t that be silly?”

Gaylor noted that non-believers are the fastest-growing segment of the U.S. population by religious affiliation, at nearly 20 percent – second only to Roman Catholics.

“It creates the dangerous misperception that our republic is based on a god, when in fact it is based on an entirely godless and secular Constitution,” Gaylor continued. “These symbolic violations from the 1950s have damaged respect for the constitutional principle of separation between religion and government.”

But the federal appeals court ruled that money is “fungible and not publicly displayed, [it] does not implicate concerns that its bearer will be forced to proclaim a viewpoint contrary to his own.”The court also ruled that the use of “In God we trust” on currency could not be challenged under the Religious Freedom Restoration Act of 1993, reiterating that there is not “substantial burden upon their religious practices or beliefs.”

“Appellants face no such stark choice between a basic benefit and a care belief,” reads the ruling.“Currency is generally carried in a purse or pocket and need not be displayed to the public,” the court argued, citing a previous ruling against New Hampshire license plates compulsory “Live Free or Die” motto for automobiles.

But Gaylor maintains that the debate is indicative of a much larger debate in America.5 Excerpted from CBS’s Washington, DC affiliate: http://washington.cbslocal.com/2014/05/29/us-appeals-court-in-god-we-trust-on-currency-not-a-violation-of-first-amendment/


“Godless money is a great way to end the argument when someone misguidedly says, ‘God has always been on our money,’” said Gaylor. “I plan to keep trying in the remaining six circuits until we find some federal appellate judges who believe in the principles that underlie our Constitution.”

– Benjamin Fearnow

Questions to Consider:• What are the central arguments of those wishing to remove ‘In God We Trust’ from U.S. currency?• Does the printing of the phrase ‘In God We Trust’ on money pass the Lemon test? The Establishment test? Why or why not?• In your opinion, does the inclusion of the phrase ‘In God We Trust’ on currency violate the Establishment Clause?


Developing a Test

Prongs The Establishment Clause

Entanglement Prong: The statute must not result in an “excessive government entangle-ment” with religious affairs.

Effect Prong: The statute must not advance or inhibit religious practice.

Purpose Prong: The statute must have a secular legislative purpose.

The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community. Government can run afoul of that prohibition…[by] endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. The proper inquiry under the purpose prong of Lemon, I submit, is whether the government intends to convey a message of endorsement or disapproval of religion.

The Task Questions to Consider as You Develop Your Test

Once you have a good understanding of the cases/issues that have stressed or challenged the current understanding of the establishment clause of the First Amendment, your group will develop a new test (or explain why you are endorsing an established one) for the Supreme Court to use in future rulings.

Do you agree with each of the three prongs of the Lemon test? Do you believe each is clear enough?Do you share Justice O’Connor’s concern (from the Endorsement Test) about the impact reli-gion in public had on “nonadherants”? Should atheist, agnostic, and religious minority view-points be granted larger weight in court rulings?How well are the founding ideals (studied dur-ing the last class meeting) expressed by the current tests?Are there other issues that are not addressed by the current tests?

Outcome NEW TEST

After you have considered the tests, the cases, and the questions above, write your own test in the following box. Use the back of the sheet if necessary.

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