1. EVERSON v. BOARD OF EDUCATION OF THE TOWN SHIP OF EWING, 330 U.S. 1 (1947) Decided:  Monday, February 10, 1947Decided By:  Vinson Court (1946-1949)

Pursuant to a New Jersey statute authorizing district boards of education to make rules and contracts for the transportation of children to and from schools other than private schools operated for profit, a board of education by resolution authorized the reimbursement of parents for fares paid for the transportation by public carrier of children attending public and Catholic schools. The Catholic schools operated under the superintendency of a Catholic priest and, in addition to secular education, gave religious instruction in the Catholic Faith. A district taxpayer challenged the validity under the Federal Constitution of the statute and resolution so far as they authorized reimbursement to parents for the transportation of children attending sectarian schools. No question was raised as to whether the exclusion of private schools operated for profit denied equal protection of the laws; nor did the record show that there were any children in the district who attended, or would have attended but for the cost of transportation, any but public or Catholic schools.

Held:

1. The expenditure of tax raised funds thus authorized was for a public purpose, and did not violate the due process clause of the Fourteenth Amendment. Pp. 330 U. S. 5-8.

2. The statute and resolution did not violate the provision of the First Amendment (made applicable to the states by the Fourteenth Amendment) prohibiting any "law respecting an establishment of religion." Pp. 330 U. S. 8-18.

133 N.J.L. 350, 44 A.2d 333, affirmed.

Page 330 U. S. 2

In a suit by a taxpayer, the New Jersey Supreme Court held that the state legislature was without power under the state constitution to authorize reimbursement to parents of bus fares paid for transporting their children to schools other than public schools. 132 N.J.L. 98, 39 A.2d 75. The New Jersey Court of Errors and Appeals reversed, holding that neither the statute nor a resolution passed pursuant to it violated the state constitution or the provisions of the Federal Constitution in issue. 133 N.J.L. 350, 44 A.2d 333. On appeal of the federal questions to this Court, affirmed, p. 330 U. S. 18.

Page 330 U. S. 3

Facts of the Case: A New Jersey law allowed reimbursements of money to parents who sent their children to school on buses operated by the public transportation system. Children who attended Catholic schools also qualified for this transportation subsidy.Question: Did the New Jersey statute violate the Establishment Clause of the First Amendment as made applicable to the states through the Fourteenth Amendment?Conclusion: No. A divided Court held that the law did not violate the Constitution. After detailing the history and importance of the Establishment Clause, Justice Black argued that services like bussing and police and fire protection for parochial schools are "separate and so indisputably marked off from the religious function" that for the state to provide them would not violate the First Amendment. The law did not pay money to parochial schools, nor did it support them directly in anyway. It was simply a law enacted as a "general program" to assist parents of all religions with getting their children to school.Facts of the Case: A New Jersey school district had passed a plan allowing the reimbursement of schools for the transportation of students to private schools. The district was acting under a statute that allowed schools to regulate the transportation of students. A state court had ruled the plan

unconstitutional, but the New Jersey Court of Errors and Appeals reversed the decision. Decision: The Court voted 5-4 in favor of upholding the New Jersey plan. Majority Opinion: (Justice Black)Paying for the busing of parochial school students does not breach the Establishment Clause. Even though the assistance might make parents more likely to send their children to such schools, the authorization does not unduly assist the schools. The policy is general because it applies to public and private school students and does not single out those attending religious schools. The funding of busing is similar to the public payment of policemen and firemen who protect parochial school students. Dissenting Opinion: (Justice Rutledge)The plan supports religious training and belief through the use of government funds. The funds for the plan are taken from taxes levied on citizens of all faiths and should not be used to further the religious education of children of other faiths, thereby violating the Establishment Clause. If it is permissible to pay for the transportation to private religious school on the grounds it promotes education, then why not pay for the entire costs of the schooling on these same grounds?Significance:Using the Fourteenth Amendment, the Court applied the Establishment Clause to the states. However, it was not violated so long as money was not given directly to religious schools or gave them specific benefits.

Everson v. Board of Education (1947)Under a New Jersey statute that allowed local school districts to fund the transportation of children to and from schools, the Board of Education of Ewing Township authorized reimbursement to parents forced to bus their children to school using regular public transportation. Part of this money was to pay for the transportation of some children to Catholic parochial schools and not just public schools.A local taxpayer filed suit, challenging the right of the Board to reimburse parents of parochial school students. He argued that the statute violated both the State and the Federal Constitutions. This court agreed and ruled hat the legislature did not have the authority to provide such reimbursements.Court DecisionThe Supreme Court ruled against the plaintiff, holding that the government was allowed to reimburse the parents of parochial school children for the costs incurred by sending them to school on public busses.As the Court noted, the legal challenged was based on two arguments: First, the law authorized the state to take money from some people and give it to others for their own private purposes, a violation of the Due Process Clause of the Fourteenth Amendment. Second, the law forced taxpayers to support religious education at Catholic schools, thus resulting in using State power to support religion - a violation of the First Amendment.The Court rejected both arguments. The first argument was rejected on the grounds that the tax was for a public purpose - educating children - and so the fact that it coincided with someone's personal desires does not render a law unconstitutional. When reviewing the second argument, the majority decision, referencing Reynolds v. United States:The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of

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Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.'Amazingly, even after admitting this, the Court failed to find any such violation in collecting taxes for the purpose of sending children to a religious school. According to the Court, providing for transportation is analogous to providing police protection along the same transportation routes - it benefits everyone, and therefore should not be refused to some because of the religious nature of their end destination.Justice Jackson, in his dissent, noted the inconsistency between the strong affirmation of the separation of church and state and the final conclusions reached. According to Jackson, the Court's decision required making both unsupported assumptions of fact and ignoring actual facts which were supported.In the first place, the Court assumed that this was part of a general program to help parents of any religion get their children safely and quickly to and from accredited schools, but Jackson noted that this was not true:The Township of Ewing is not furnishing transportation to the children in any form; it is not operating school busses itself or contracting for their operation; and it is not performing any public service of any kind with this taxpayer's money. All school children are left to ride as ordinary paying passengers on the regular busses operated by the public transportation system. What the Township does, and what the taxpayer complains of, is at stated intervals to reimburse parents for the fares paid, provided the children attend either public schools or Catholic Church schools. This expenditure of tax funds has no possible effect on the child's safety or expedition in transit. As passengers on the public busses they travel as fast and no faster, and are as safe and no safer, since their parents are reimbursed as before.In the second place, the Court ignored the actual facts of religious discrimination which was occurring:The resolution which authorizes disbursement of this taxpayer's money limits reimbursement to those who attend public schools and Catholic schools. That is the way the Act is applied to this taxpayer. The New Jersey Act in question makes the character of the school, not the needs of the children determine the eligibility of parents to reimbursement. The Act permits payment for transportation to parochial schools or public schools but prohibits it to private schools operated in whole or in part for profit. ...If all children of the state were objects of impartial solicitude, no reason is obvious for denying transportation reimbursement to students of this class, for these often are as needy and as worthy as those who go to public or parochial schools. Refusal to reimburse those who attend such schools is understandable only in the light of a purpose to aid the schools, because the state might well abstain from aiding a profit-making private enterprise.As Jackson noted, the only reason for refusing to help children going to for-profit private schools is a desire not to aid those schools in their ventures - but this automatically means that giving reimbursements to children going to parochial schools means that the government is helping them.SignificanceThis case reinforced the precedent of government money financing portions of religious, sectarian education by having those funds applied to activities other than direct religious education.

2. ROSENBERGER et al. v. RECTOR AND VISITORS OF UNIVERSITY OF VIRGINIA et al.

Certiorari to the United States court of appeals for the fourth circuitNo. 94-329. Argued March 1, 1995 -- Decided June 29, 1995

Respondent University of Virginia, a state instrumentality, authorizes payments from its Student Activities Fund (SAF) to outside contractors for the printing costs of a variety of publications issued by student groups called "Contracted Independent Organizations" (CIOs). The SAF receives its money from mandatory student fees and is designed to

support a broad range of extracurricular student activities related to the University's educational purpose. CIOs must include in their dealings with third parties and in all written materials a disclaimer stating that they are independent of the University and that the University is not responsible for them. The University withheld authorization for payments to a printer on behalf of petitioners' CIO, Wide Awake Productions (WAP), solely because its student newspaper, Wide Awake: A Christian Perspective at the University of Virginia, "primarily promotes or manifests a particular belie[f] in or about a deity or an ultimate reality," as prohibited by the University's SAF Guidelines. Petitioners filed this suit under 42 U.S.C. § 1983 alleging, inter alia, that the refusal to authorize payment violated their First Amendment right to freedom of speech. After the District Court granted summary judgment for the University, the Fourth Circuit affirmed, holding that the University's invocation of viewpoint discrimination to deny third party payment violated the Speech Clause, but concluding that the discrimination was justified by the necessity of complying with the Establishment Clause.

Held:

1. The Guideline invoked to deny SAF support, both in its terms and in its application to these petitioners, is a denial of their right of free speech. Pp. 7-16.

(a) The Guideline violates the principles governing speech in limited public forums, which apply to the SAF under, e.g., Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 46-47. In determining whether a State is acting within its power to preserve the limits it has set for such a forum so that the exclusion of a class of speech there is legitimate, see, e.g., id., at 49, this Court has observed a distinction between, on the one hand, content discrimination--i.e., discrimination against speech because of its subject matter--which may be permissible if it preserves the limited forum's purposes, and, on the other hand, viewpoint discrimination--i.e., discrimination because of the speaker's specific motivating ideology, opinion, or perspective--which is presumed impermissible when directed against speech otherwise within the forum's limitations, see id., at 46. The most recent and most apposite case in this area is Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. __, __, in which the Court held that permitting school property to be used for the presentation of all views on an issue except those dealing with it from a religious standpoint constitutes prohibited viewpoint discrimination. Here, as in that case, the State's actions are properly interpreted as unconstitutional viewpoint discrimination rather than permissible line drawing based on content: By the very terms of the SAF prohibition, the University does not exclude religion as a subject matter, but selects for disfavored treatment those student journalistic efforts with religious editorial viewpoints. Pp. 7-11.

(b) The University's attempt to escape the consequences of Lamb's Chapel by urging that this case involves the provision of funds rather than access to facilities is unavailing. Although it may regulate the content of expression when it is the speaker or when it enlists private entities to convey its own message, Rust v. Sullivan, 500 U.S. 173; Widmar v. Vincent, 454 U.S. 263, 276, the University may not discriminate based on the viewpoint of private persons whose speech it subsidizes, Regan v. Taxation with Representation of Wash., 461 U.S. 540, 548. Its argument that the scarcity of public money may justify otherwise impermissible viewpoint discrimination among private speakers is simply wrong. Pp. 11-14.

(c) Vital First Amendment speech principles are at stake here. The Guideline at issue has a vast potential reach: The term "promotes" as used there would comprehend any writing advocating a philosophic position that rests upon a belief (or nonbelief) in a deity or ultimate reality, while the term "manifests" would bring within the prohibition any writing resting upon a premise presupposing the existence (or

Smoky’s KnowNotes / Consti 2 / Religion Clauses 2

nonexistence) of a deity or ultimate reality. It is difficult to name renowned thinkers whose writings would be accepted, save perhaps for articles disclaiming all connection to their ultimate philosophy. Pp. 14-16.

2. The violation following from the University's denial of SAF support to petitioners is not excused by the necessity of complying with the Establishment Clause. Pp. 16-25.

(a) The governmental program at issue is neutral toward religion. Such neutrality is a significant factor in upholding programs in the face of Establishment Clause attack, and the guarantee of neutrality is not offended where, as here, the government follows neutral criteria and even handed policies to extend benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse, Board of Ed. of Kiryas Joel v. Grumet, 512 U. S. __, __. There is no suggestion that the University created its program to advance religion or aid a religious cause. The SAF's purpose is to open a forum for speech and to support various student enterprises, including the publication of newspapers, in recognition of the diversity and creativity of student life. The SAF Guidelines have a separate classification for, and do not make third party payments on behalf of, "religious organizations," and WAP did not seek a subsidy because of its Christian editorial viewpoint; it sought funding under the Guidielines as a "student . . . communications . . . grou[p]." Neutrality is also apparent in the fact that the University has taken pains to disassociate itself from the private speech involved in this case. The program's neutrality distinguishes the student fees here from a tax levied for the direct support of a church or group of churches, which would violate the Establishment Clause. Pp. 16-21.

(b) This case is not controlled by the principle that special Establishment Clause dangers exist where the government makes direct money payments to sectarian institutions, see, e.g., Roemer v. Board of Public Works, 426 U.S. 736, 747, since it is undisputed that no public funds flow directly into WAP's coffers under the program at issue. A public university does not violate the Establishment Clause when it grants access to its facilities on a religion neutral basis to a wide spectrum of student groups, even if some of those groups would use the facilities for devotional exercises. See e.g., Widmar, 474 U. S., at 269. This is so even where the upkeep, maintenance, and repair of those facilities is paid out of a student activities fund to which students are required to contribute. Id., at 265. There is no difference in logic or principle, and certainly no difference of constitutional significance, between using such funds to operate a facility to which students have access, and paying a third party contractor to operate the facility on its behalf. That is all that is involved here: The University provides printing services to a broad spectrum of student newspapers. Were the contrary view to become law, the University could only avoid a constitutional violation by scrutinizing the content of student speech, lest it contain too great a religious message. Such censorship would be far more inconsistent with the Establishment Clause's dictates than would governmental provision of secular printing services on a religion blind basis. Pp. 21-25.

18 F. 3d 269, reversed.

Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Scalia, and Thomas, JJ., joined. O'Connor, J., and Thomas, J., filed concurring opinions. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined.

3. REYNOLDS v. UNITED STATES, 98 U.S. 145 (1879)

Appellant:  George ReynoldsAppellee:  United StatesDecided By:  Waite Court (1877-1880)

Decided:  Monday, January 6, 1879Facts of the Case:  George Reynolds, secretary to Mormon Church leader Brigham Young, challenged the federal anti-bigamy statute. Reynolds was convicted in a Utah territorial district court. His conviction was affirmed by the Utah territorial supreme court.Question:  Does the federal anti-bigamy statute violate the First Amendment's free exercise clause because plural marriage is part of religious practice?Conclusion:  No. Chief Justice Morrison R. Waite, writing for a unanimous court, held that the statute can punish criminal activity without regard to religious belief. The First Amendment protected religious belief, but it did not protect religious practices that were judged to be criminal such as bigamy. Those who practice polygamy could no more be exempt from the law than those who may wish to practice human sacrifice as part of their religious belief.

Reynolds v. United States, 98 U.S. 145 (1879), argued 14–15 Nov. 1878 decided 5 May 1879 by vote of 9 to 0; Waite for the Court, Field concurring. This case grew out of the Grant administration's campaign to stamp out Mormon polygamy. Grant appointed James B. McKean, chief justice of the Utah Territorial Supreme Court, and General J. Wilson Shaffer, territorial governor, with orders to end Mormon polygamy. McKean's United States marshals rounded up hundreds of Mormons under a federal antibigamy statute. To test federal law, the Mormon church hierarchy prepared George Reynolds, secretary to Brigham Young, for a test case. Following conviction in territorial district court and appeal to the Utah territorial supreme court, Reynolds appealed before the U.S. Supreme Court. 

Anti‐Mormon arguments termed polygamy socially destructive and accused the Mormons of constituting a moral menace to the country. Mormons argued that the First Amendment protected religious freedom and that plural marriage was part of religious practice. In the alternative, they argued that polygamy was not bigamy and that it was supportive of mainstream American values such as family and spiritual growth, was not destructive of the social fabric, and clearly did not threaten the public peace. 

Chief Justice Morrison R. Waite, for a unanimous court, declared that federal statute constitutionally could punish criminal activity regardless of religious beliefs. Simply, religious practices that impaired the public interest did not fall under the protection of the First Amendment. 

In analyzing the original position of the founders on the First Amendment's language on religion, Waite relied heavily upon history and in particular upon Thomas Jefferson. In the process, Waite observed that “a wall of separation between church and state” existed, thus using a metaphor that would trouble the courts for the next century (p. 164). 

4. SHERBERT v. VERNER, 374 U.S. 398

APPEAL FROM THE SUPREME COURT OF SOUTH CAROLINANo. 526 Argued: April 24, 1963 --- Decided: June 17, 1963

Appellant, a member of the Seventh-Day Adventist Church, was discharged by her South Carolina employer because she would not work on Saturday, the Sabbath Day of her faith. She was unable to obtain other employment because she would not work on Saturday, and she filed a claim for unemployment compensation benefits under the South Carolina Unemployment Compensation Act, which provides that a claimant is ineligible for benefits if he has failed, without good cause, to accept available suitable work when offered him. The State Commission denied appellant's application on the ground that she would not accept suitable work when offered, and its action was sustained by the State Supreme Court.

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Held: As so applied, the South Carolina statute abridged appellant's right to the free exercise of her religion, in violation of the First Amendment, made applicable to the states by the Fourteenth Amendment. Pp. 399-410.

(a) Disqualification of appellant for unemployment compensation benefits, solely because of her refusal to accept employment in which she would have to work on Saturday contrary to her religious belief, imposes an unconstitutional burden on the free exercise of her religion. Pp. 403-406.

(b) There is no compelling state interest enforced in the eligibility provisions of the South Carolina statute which justifies the substantial infringement of appellant's right to religious freedom under the First Amendment. Pp. 406-409.

(c) This decision does not foster the "establishment" of the Seventh-Day Adventist religion in South Carolina contrary to the First Amendment. Pp. 409-410.

5. WISCONSIN v. YODER, 406 U.S. 205

CERTIORARI TO THE SUPREME COURT OF WISCONSINNo. 70-110 Argued: December 8, 1971 --- Decided: May 15, 1972

Respondents, members of the Old Order Amish religion and the Conservative Amish Mennonite Church, were convicted of violating Wisconsin's compulsory school attendance law (which requires a child's school attendance until age 16) by declining to send their children to public or private school after they had graduated from the eighth grade. The evidence showed that the Amish provide continuing informal vocational education to their children designed to prepare them for life in the rural Amish community. The evidence also showed that respondents sincerely believed that high school attendance was contrary to the Amish religion and way of life, and that they would endanger their own salvation and that of their children by complying with the law. The State Supreme Court sustained respondents' claim that application of the compulsory school attendance law to them violated their rights under the Free Exercise Clause of the First Amendment, made applicable to the States by the Fourteenth Amendment.

Held:

1. The State's interest in universal education is not totally free from a balancing process when it impinges on other fundamental rights, such as those specifically protected by the Free Exercise Clause of the First Amendment and the traditional interest of parents with respect to the religious upbringing of their children. Pp. 213-215.

2. Respondents have amply supported their claim that enforcement of the compulsory formal education requirement after the eighth grade would gravely endanger if not destroy the free exercise of their religious beliefs. Pp. 215-219

3. Aided by a history of three centuries as an identifiable religious sect and a long history as a successful and self-sufficient segment of American society, the Amish have demonstrated the sincerity of their religious beliefs, the interrelationship of belief with their mode of life, the vital role that belief and daily conduct play in the continuing survival of Old Order Amish communities, and the hazards presented by the State's enforcement of a statute generally valid as to others. Beyond this, they have [p206] carried the difficult burden of demonstrating the adequacy of their alternative mode of continuing informal vocational education in terms of the overall interest that the State relies on in support of its program of compulsory high school education. In light of this showing, and weighing the minimal difference between what the State would require and what the Amish already accept, it was incumbent on the State to show with more particularity how its admittedly strong interest in compulsory education

would be adversely affected by granting an exemption to the Amish. Pp. 212-29, 234-236.

4. The State's claim that it is empowered, as parens patriae, to extend the benefit of secondary education to children regardless of the wishes of their parents cannot be sustained against a free exercise claim of the nature revealed by this record, for the Amish have introduced convincing evidence that accommodating their religious objections by forgoing one or two additional years of compulsory education will not impair the physical or mental health of the child, or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from the welfare of society. Pp. 229-234.

49 Wis.2d 430, 182 N.W.2d 539, affirmed.

BURGER, C.J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, MARSHALL, and BLACKMUN, JJ., joined. STEWART, J., filed a concurring opinion, in which BRENNAN, J., joined, post, p. 237. WHITE, J., filed a concurring opinion, in which BRENNAN and STEWART, JJ., joined, post, p. 237. DOUGLAS, J., filed an opinion dissenting in part, post, p. 241. POWELL and REHNQUIST, JJ., took no part in the consideration or decision of the case. [p207]

6. BOB JONES UNIVERSITY V. UNITED STATES, 461 U.S. 574

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUITNo. 81-3 Argued: October 12, 1982 --- Decided: May 24, 1983 [*]

Section 501(c)(3) of the Internal Revenue Code of 1954 (IRC) provides that "[c]orporations . . . organized and operated exclusively for religious, charitable . . . or educational purposes" are entitled to tax exemption. Until 1970, the Internal Revenue Service (IRS) granted tax-exempt status under § 501(c)(3) to private schools, independent of racial admissions policies, and granted charitable deductions for contributions to such schools under § 170 of the IRC. But in 1970, the IRS concluded that it could no longer justify allowing tax-exempt status under § 501(c)(3) to private schools that practiced racial discrimination, and in 1971 issued Revenue Ruling 71-447 providing that a private school not having a racially nondiscriminatory policy as to students is not "charitable" within the common law concepts reflected in §§ 170 and 501(c)(3). In No. 81-3, petitioner Bob Jones University, while permitting unmarried Negroes to enroll as students, denies admission to applicants engaged in an interracial marriage or known to advocate interracial marriage or dating. Because of this admissions policy, the IRS revoked the University's tax-exempt status. After paying a portion of the federal unemployment taxes for a certain taxable year, the University filed a refund action in Federal District Court, and the Government counterclaimed for unpaid taxes for that and other taxable years. Holding that the IRS exceeded its powers in revoking the University's tax-exempt status and violated the University's rights under the Religion Clauses of the First Amendment, the District Court ordered the IRS to refund the taxes paid and rejected the counterclaim. The Court of Appeals reversed. In No. 81-1, petitioner Goldsboro Christian Schools maintains a racially discriminatory admissions policy based upon its interpretation of the Bible, accepting for the most part only Caucasian students. The IRS determined that Goldsboro was not an organization described in § 501(c)(3), and hence was required to pay federal social security and unemployment taxes. After paying a portion of such taxes for certain years, Goldsboro filed a refund suit in Federal District Court, and the IRS counterclaimed for unpaid taxes. The District Court entered summary judgment for [p575] the IRS, rejecting Goldsboro's claim to tax-exempt status under § 501(c) (3) and also its claim that the denial of

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such status violated the Religion Clauses of the First Amendment. The Court of Appeals affirmed.

Held: Neither petitioner qualifies as a tax-exempt organization under § 501(c)(3). Pp. 585-605.

(a) An examination of the IRC's framework and the background of congressional purposes reveals unmistakable evidence that, underlying all relevant parts of the IRC, is the intent that entitlement to tax exemption depends on meeting certain common law standards of charity -- namely, that an institution seeking tax-exempt status must serve a public purpose and not be contrary to established public policy. Thus, to warrant exemption under § 501(c)(3), an institution must fall within a category specified in that section, and must demonstrably serve and be in harmony with the public interest, and the institution's purpose must not be so at odds with the common community conscience as to undermine any public benefit that might otherwise be conferred. Pp. 585-592.

(b) The IRS's 1970 interpretation of § 501(c)(3) was correct. It would be wholly incompatible with the concepts underlying tax exemption to grant tax-exempt status to racially discriminatory private educational entities. Whatever may be the rationale for such private schools' policies, racial discrimination in education is contrary to public policy. Racially discriminatory educational institutions cannot be viewed as conferring a public benefit within the above "charitable" concept or within the congressional intent underlying § 501(c)(3). Pp. 592-596.

(c) The IRS did not exceed its authority when it announced its interpretation of § 501(c)(3) in 1970 and 1971. Such interpretation is wholly consistent with what Congress, the Executive, and the courts had previously declared. And the actions of Congress since 1970 leave no doubt that the IRS reached the correct conclusion in exercising its authority. Pp. 596-62.

(d) The Government's fundamental, overriding interest in eradicating racial discrimination in education substantially outweighs whatever burden denial of tax benefits places on petitioners' exercise of their religious beliefs. Petitioners' asserted interests cannot be accommodated with that compelling governmental interest, and no less restrictive means are available to achieve the governmental interest. Pp. 602-604.

(e) The IRS properly applied its policy to both petitioners. Goldsboro admits that it maintains racially discriminatory policies, and, contrary to Bob Jones University's contention that it is not racially discriminatory, discrimination on the basis of racial affiliation and association is a form of racial discrimination. P. 605.

[p*576]BURGER, C.J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined, and in Part III of which POWELL, J., joined. POWELL, J., filed an opinion concurring in part and concurring in the judgment, post, p. 606. REHNQUIST, J., filed a dissenting opinion, post, p. 612. [p577]

7. EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES OF OREGON V. SMITH, 494 U.S. 872

CERTIORARI TO THE SUPREME COURT OF OREGONNo. 88-1213 Argued: Nov. 6, 1989 --- Decided: April 17, 1990

Respondents Smith and Black were fired by a private drug rehabilitation organization because they ingested peyote, a hallucinogenic drug, for sacramental purposes at a ceremony of their Native American Church. Their applications for unemployment compensation were denied by the State of

Oregon under a state law disqualifying employees discharged for work-related "misconduct." Holding that the denials violated respondents' First Amendment free exercise rights, the State Court of Appeals reversed. The State Supreme Court affirmed, but this Court vacated the judgment and remanded for a determination whether sacramental peyote use is proscribed by the State's controlled substance law, which makes it a felony to knowingly or intentionally possess the drug. Pending that determination, the Court refused to decide whether such use is protected by the Constitution. On remand, the State Supreme Court held that sacramental peyote use violated, and was not excepted from, the state law prohibition, but concluded that that prohibition was invalid under the Free Exercise Clause.

Held: The Free Exercise Clause permits the State to prohibit sacramental peyote use, and thus to deny unemployment benefits to persons discharged for such use. Pp. 876-890.

(a) Although a State would be "prohibiting the free exercise [of religion]" in violation of the Clause if it sought to ban the performance of (or abstention from) physical acts solely because of their religious motivation, the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons. See, e.g., Reynolds v. United States, 98 U.S. 145, 166-167. The only decisions in which this Court has held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action are distinguished on the ground that they involved not the Free Exercise Clause alone, but that Clause in conjunction with other constitutional [p873] protections. See, e.g., Cantwell v. Connecticut, 310 U.S. 296, 304-307; Wisconsin v. Yoder, 406 U.S. 205. Pp. 876-882.

(b) Respondents' claim for a religious exemption from the Oregon law cannot be evaluated under the balancing test set forth in the line of cases following Sherbert v. Verner, 374 U.S. 398, 402-403, whereby governmental actions that substantially burden a religious practice must be justified by a "compelling governmental interest." That test was developed in a context -- unemployment compensation eligibility rules -- that lent itself to individualized governmental assessment of the reasons for the relevant conduct. The test is inapplicable to an across-the-board criminal prohibition on a particular form of conduct. A holding to the contrary would create an extraordinary right to ignore generally applicable laws that are not supported by "compelling governmental interest" on the basis of religious belief. Nor could such a right be limited to situations in which the conduct prohibited is "central" to the individual's religion, since that would enmesh judges in an impermissible inquiry into the centrality of particular beliefs or practices to a faith. Cf. Hernandez v. Commissioner, 490 U.S. 680, 699. Thus, although it is constitutionally permissible to exempt sacramental peyote use from the operation of drug laws, it is not constitutionally required. Pp. 882-890.

SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, STEVENS, and KENNEDY, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment, in Parts I and II of which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined without concurring in the judgment, post, p. 891. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 907. [p874]

8. ZORACH V. CLAUSON, 28 APRIL 1952

Appellant: Tessim ZorachAppellee: Andrew G. Clauson, Jr.Appellant's Claim: That New York City's program of "released time" for students to attend religious instruction away from school premises violated the First Amendment mandate of church-state separation.

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Justices for the CourtHarold Burton, Tom C. Clark, William O. Douglas (writing for the Court), Sherman Minton, Stanley Forman Reed, Fred Moore VinsonJustices DissentingHugo Lafayette Black, Felix Frankfurter, Robert H. JacksonDecision: The Supreme Court upheld the program.SignificanceAlthough Zorach is at odds with other Supreme Court precedents, it hasevolved into the Lemon test for acceptable state accommodation of religion.In the 1940s, New York City adopted a program of "released time" that permitted public school students to take time off during the normal school day to attend religious instruction away from the actual school premises. Tessim Zorach, together with other taxpayers and parents in New York, brought suit against Andrew Clauson and other members of the city school board, challenging theprogram. After a series of New York state courts rejected his challenge, Zorach took his case to the U.S. Supreme Court.

Supreme Court Upholds "Released Time" ProgramZorach based his suit on the Establishment Clause of the First Amendment, which holds that: "Congress shall make no law respecting an establishment of religion . . . " Since the days of Thomas Jefferson, this clause of the Constitution has been interpreted to mean that "a wall of separation" exists betweenchurch and state. And since the Court decided Everson v. Board of Education in 1947, government has had to maintain an attitude of strict neutrality towards religion in order to keep that wall up.The effort with regard to public schools has been especially fraught. In 1948, the Court considered the first of its "released time" cases,Illinois exrel. McCollum v. Board of Education, in which religious instruction provided to public school students by independent teachers on school grounds wasstruck down. Just four years later, in Zorach, however, the Court upheld a similar "released time" program. The only obvious difference between thetwo programs was that in Zorach the religious instruction took placeaway from school property.It is not easy to square Zorach with McCollum. Indeed, in lateryears, Justice Douglas, the author of the majority opinion inZorachdisavowed what he had to say there. But Douglas's opinion itself contains indications of why the Court has not only not reversedZorach, but subsequently expanded upon it:We would have to press the concept of separation of Church and state to . . . extremes to condemn the present law on constitutional grounds . . . In each case the teacher requires parental consent in writing. In each case the teacher, in order to make sure the student isnot a truant, goes further and requires a report from the priest, the rabbi,or the minister. The teacher in other words cooperates in a religious programto the extent of making it possible for her students to participate in it. Whether she does it occasionally for a few students, regularly for one, or pursuant to a systematized program designed to further the religious needs of all the students does not alter the character of the act.

The difference between the situations in McCollum and Zorach was the manner in which students confirmed participation. In McCollumthe students had to opt out, and in the latter students had to make an affirmative effort to participate. The decision to engage in religious activities during school hours, in other words, was theirs and their parents'. This line ofthought eventually led, in Lemon v. Kurtzman(1971), to the Lemon test for acceptable state accommodation of religion. In order for a statute or program not to violate the Establishment Clause, it must meet three requirements: 1) it must have a secular legislative purpose; 2) its primary purpose must neither advance nor inhibit religion; and 3) it must not foster excessive government entanglement with religion.It is this third prong of the Lemon test that evolved from Zorach. Ifstudents--or better yet, their more independent parents--make the decision toparticipate in religious activities only tangentially connected with the public schools, then the government itself avoids "excessive entanglement."

Suchthinking has led to decisions like Board of Education v. Mergens (1990), in which the Court upheld prayer meetings organized and held at a publichigh school during an "activity period" when students were free to attend a wide variety of other, secular events.Related Cases

• Everson v. Board of Education, 330 U.S. 1 (1947).• Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203 (1948).• Lemon v. Kurtzman, 403 U.S. 602 (1971).• Board of Education v. Mergens, (1990).

9. SCHOOL DISTRICT OF ABINGTON TOWNSHIP, PENNSYLVANIA V. SCHEMPP, 374 U.S. 203

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIANo. 142 Argued: February 27-28, 1963 --- Decided: June 17, 1963

Because of the prohibition of the First Amendment against the enactment by Congress of any law "respecting an establishment of religion," which is made applicable to the States by the Fourteenth Amendment, no state law or school board may require that passages from the Bible be read or that the Lord's Prayer be recited in the public schools of a State at the beginning of each school day -- even if individual students may be excused from attending or participating in such exercises upon written request of their parents. Pp. 205-227.

228 Md. 239, 179 A.2d 698, reversed. [p*205]

10. LEE et al. v. WEISMAN, PERSONALLY AND AS NEXT FRIEND OF WEISMAN

Certiorari to the united states court of appeals for the first circuitNo. 90-1014. Argued November 6, 1991 — Decided June 24, 1992

Principals of public middle and high schools in Providence, Rhode Island, are permitted to invite members of the clergy to give invocations and benedictions at their schools' graduation ceremonies. Petitioner Lee, a middle school principal, invited a rabbi to offer such prayers at the graduation ceremony for Deborah Weisman's class, gave the Rabbi a pamphlet containing guidelines for the composition of public prayers at civic ceremonies, and advised him that the prayers should be nonsectarian. Shortly before the ceremony, the District Court denied the motion of respondent Weisman, Deborah's father, for a temporary restraining order to prohibit school officials from including the prayers in the ceremony. Deborah and her family attended the ceremony, and the prayers were recited. Subsequently, Weisman sought a permanent injunction barring Lee and other petitioners, various Providence public school officials, from inviting clergy to deliver invocations and benedictions at future graduations. It appears likely that such prayers will be conducted at Deborah's high school graduation. The District Court enjoined petitioners from continuing the practice at issue on the ground that it violated the Establishment Clause of the First Amendment. The Court of Appeals affirmed.

Held: Including clergy who offer prayers as part of an official public school graduation ceremony is forbidden by the Establishment Clause. Pp. 7-19.

(a) This Court need not revisit the questions of the definition and scope of the principles governing the extent of permitted accommodation by the State for its citizens' religious beliefs and practices, for the controlling precedents as they relate to prayer and religiousexercise in primary and secondary public

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schools compel the holding here. Thus, the Court will not reconsider its decision in Lemon v. Kurtzman, 403 U.S. 602. The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause, which guarantees at a minimum that a government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which "establishes a [state] religion or religious faith, or tends to do so." Lynch v. Donnelly, 465 U.S. 668, 678. Pp. 7-8.

(b) State officials here direct the performance of a formal religious exercise at secondary schools' promotional and graduation ceremonies. Lee's decision that prayers should be given and his selection of the religious participant are choices attributable to the State. Moreover, through the pamphlet and his advice that the prayers be nonsectarian, he directed and controlled the prayers' content. That the directions may have been given in a good faith attempt to make the prayers acceptable to most persons does not resolve the dilemma caused by the school's involvement, since the government may not establish an official or civic religion as a means of avoiding the establishment of a religion with more specific creeds. Pp. 8-11.

(c) The Establishment Clause was inspired by the lesson that in the hands of government what might begin as a tolerant expression of religious views may end in a policy to indoctrinate and coerce. Prayer exercises in elementary and secondary schools carry a particular risk of indirect coercion. Engel v. Vitale, 370 U.S. 421; Abington School District v. Schempp, 374 U.S. 203. The school district's supervision and control of a high school graduation ceremony places subtle and indirect public and peer pressure on attending students to stand as a group or maintain respectful silence during the invocation and benediction. A reasonable dissenter of high school age could believe that standing or remaining silent signified her own participation in, or approval of, the group exercise, rather than her respect for it. And the State may not place the student dissenter in the dilemma of participating or protesting. Since adolescents are often susceptible to peer pressure, especially in matters of social convention, the State may no more use social pressure to enforce orthodoxy than it may use direct means. The embarrassment and intrusion of the religious exercise cannot be refuted by arguing that the prayers are of a de minimis character, since that is an affront to the Rabbi and those for whom the prayers have meaning, and since any intrusion was both real and a violation of the objectors' rights. Pp. 11-15.

(d) Petitioners' argument that the option of not attending the ceremony excuses any inducement or coercion in the ceremony itself is rejected. In this society, high school graduation is one of life'smost significant occasions, and a student is not free to absent herself from the exercise in any real sense of the term "voluntary." Also not dispositive is the contention that prayers are an essential part of these ceremonies because for many persons the occasion would lack meaning without the recognition that human achievements cannot be understood apart from their spiritual essence. This position fails to acknowledge that what for many was a spiritual imperative was for the Weismans religious conformance compelled by the State. It also gives insufficient recognition to the real conflict of conscience faced by a student who would have to choose whether to miss graduation or conform to the state sponsored practice, in an environment where the risk of compulsion is especially high. Pp. 15-17.

(e) Inherent differences between the public school system and a session of a state legislature distinguish this case from Marsh v. Chambers, 463 U.S. 783, which condoned a prayer exercise. The atmosphere at a state legislature's opening, where adults are free to enter and leave with little comment and for any number of reasons, cannot compare with the

constraining potential of the one school event most important for the student to attend. Pp. 17-18.

908 F. 2d 1090, affirmed.

Kennedy, J., delivered the opinion of the Court, in which Blackmun, Stevens, O'Connor, and Souter, JJ., joined. Blackmun, J., and Souter, J., filed concurring opinions, in which Stevens and O'Connor, JJ., joined. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and White and Thomas, JJ., joined.

11. STONE v. GRAHAM, 17 November 1980

Petitioner: William C. Stone, et al.Respondent James Graham, Superintendent of Public Instruction of KentuckyPetitioner's Claim That a Kentucky law requiring posting of the Ten Commandments in public schoolrooms violated the Establishment Clause of the First Amendment. Justices for the CourtWilliam J. Brennan, Jr., Thurgood Marshall, Lewis F. Powell, Jr., William H.Rehnquist, John Paul Stevens, Byron R. White (unsigned)Justices DissentingWarren E. Burger, Harry A. Blackmun, Potter Stewart

DecisionUpheld Stone's claim and overturned a Kentucky Supreme Court decision allowing copies of the Ten Commandments to be posted in all public classrooms for secular (non-religious) purposes.

SignificanceThe ruling found that placement of a copy of the Ten Commandments in public classrooms constituted unlawful promotion of the Christian religious tradition. The Establishment Clause violation was largely based on the lack of integration of the Ten Commandments into a formal school curriculum. Various organizations and public school districts have since developed and adopted such curricula. The ruling also marked a growing trend by the Court to evaluate the purpose of state legislation in individual cases, not just the effects of laws.In 1978 the state of Kentucky passed legislation requiring placement of a copy of the Ten Commandments, purchased with private donations, on the wall of each public school classroom. Also required was a notation in small print at the bottom of each display. The notice stated that the "secular application ofthe Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States." Despite complaints, James Graham, Superintendent of Public Instruction in Kentucky, defended the stated secular purpose and emphasized the use of private funds. Stone filed suit with state court claiming the law violated the Establishment Clause of the First Amendment. The Establishment Clause states that, "Congress shall make no law respecting an establishment of religion." The clauseguarantees separation of church (religion) and state (government). Governmentcan neither favor one religion over another nor religion over non-religion.The state court accepted the secular purpose as stated in the Kentucky law. The court found the action neither promoted or inhibited any religion or religious group nor involved the state excessively in religious matters. Appeal tothe Kentucky Supreme Court led to affirmation of the lower court's finding through a tie vote. Stone then appealed to the U.S. Supreme Court.

Coercion in the Classroom?Determining what degree of government action constitutes unlawful promotion of religious belief in the classroom has long been debated. In the 1963 Abington School District v. Schempp case, the Supreme Court established

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thatgovernment actions must have a "secular legislative purpose and a primary effect that neither advances nor inhibits religion" to not violate the Establishment Clause. This "purpose and effect" test was later merged with the concept of "entanglement" in the 1971 Lemon v. Kurtzman case to create the three-part Lemon test. The Lemon test asks three questions: (1) is the purposeof the legislation secular or religious; (2) does the primary effect of thelegislation favor a particular religion, and (3) does the legislation resultin excessive "entanglement" of the government. Entanglement refers to the degree of control and involvement the government finds itself having in a religious activity. The courts have defined three levels of government "favoritism"to determine the effect legislation poses: coercion, endorsement, and acknowledgment. The Supreme Court has consistently considered most religious-oriented activities in public school classrooms as coercion because school attendance is mandatory and children are particularly impressionistic, and hence aremore susceptible to influence than adults. Rulings on the Establishment Clause are based on application of this test. Inclusion of Abington for legislative purpose, as a separate measure of constitutionality, substantially increased the range of government actions potentially violating the Establishment Clause.The Supreme Court, in applying the Lemon test to determine if the Kentucky law was permissible under the Establishment Clause, came to a different conclusion than the two lower courts. In a majority opinion unsigned by the five justices, a 5-4 vote found the Kentucky law had no secular legislative purpose despite Kentucky's asserting the non-religious intent written in the law itself and in the disclaimer on each posting. The majority wrote that the "preeminent purpose [was] plainly religious" because the "Ten Commandments are undeniably a sacred text in Jewish and Christian faiths, and no legislative recitalof a supposed secular purpose can blind us to that fact." The Court found the Ten Commandments had not been integrated into a school curriculum for purposes of study in history, civilization, ethics, or comparative religion. Hence, the posting served no valid public educational function. The majority alsofound that even though the copies of the Ten Commandments were purchased withprivate monies, public funds were still spent in administering the statute itself and that constituted excessive entanglement.

The Secular Impact of ReligionJoined in dissent by Justices Blackmun, Stewart and Chief Justice Burger, Justice Rehnquist asserted that the "Court's summary rejection of a secular purpose articulated by the legislature and confirmed by the state court is without precedent in Establishment Clause jurisprudence." He considered the questioning of Kentucky legislature intent highly inappropriate. The Court decisionwas thus assuming an implied unlawful religious purpose or desired effect bythe state legislature and he believed this finding was unsupported by fact. Rehnquist wrote that the Court should accept Kentucky's statement in good faith and not rule the law void because the stated secular purpose might conflictwith what others may see as religious. Rehnquist further wrote, "The Establishment Clause does not require that the public sector be insulated from all things which may have a religious significance or origin." In summary, he acknowledged the integral role of religion in U.S. history and government and that Kentucky was appropriately instructing its students on the "secular impactof the Ten Commandments." Rehnquist finished by protesting the lack of oral arguments and legal briefs presented to the Court in this case.

ImpactThe 1990s witnessed a nationwide spiritual revival and a rise in conservativeChristian activism, including organizations such as the Promise Keepers andChristian Coalition. Groups such as these expressed an increasing desire forgreater religious expression in public schools as well as government buildings. The number of student religious clubs in public schools also grew significantly, including Jewish and Muslim as

well as Christian clubs.Some believed that, owing to glaring inconsistencies in Supreme Court decisions involving the Establishment Clause, the resulting confusion in society inappropriately kept religion largely out of public schools. Minimally, this avoidance had resulted in generations of students who lack knowledge concerningthe impact of religion on the United States and the world. Worse yet, many believed Court decisions banning prayer and other religious expressions, such as the posting of the Ten Commandments, contributed in the 1990s to a perceived significant moral decline in younger generations. For example, violent crime in public schools increasingly became a concern. Republican legislators came into power in the 1994 elections and promised to introduce a "school prayer" amendment. By 1998 Congress debated a proposed constitutional amendment, titled the Religious Freedom Amendment. The new amendment sought to recognize anew right to practice religion in public schools and on government property,including the display of religious symbols, such as the Ten Commandments, and allowing the use of public funds to support private religious schools.Many hold the Ten Commandments as a cornerstone of Western civilization and the basis for the U.S. legal system. Similarly, the Court repeatedly recognized the substantial contributions religion made to historical events and socialtrends in the United States. Even the majority in Abington, which prohibited the daily reading of Bible verses in a public school, asserted that astudent not exposed to religious ideas and texts would receive a less than full education by leaving them ignorant of the importance of religion in U.S.history. Consequently, critics believed the Court had been overzealous in theapplication of the Establishment Clause in a number of cases, including Stone.Display of the Ten Commandments in public buildings continued to be an issuethrough the 1990s. A U.S. Circuit Court of Appeals prohibited a display in aGeorgia courthouse in 1994. The American Civil Liberties Union of Alabama filed a lawsuit the following year to stop a state court judge from posting a wood carving of the Ten Commandments in his courtroom. By 1998 resolutions encouraging the display of the Ten Commandments in public buildings were introduced in both houses of Congress. Critics claimed that Christians and Jews werebeing accorded a privileged status in violation of the Establishment Clause.In response to the growing public sentiment of the early 1990s, President Bill Clinton issued a Memorandum on Religious Expression in the Public Schools in July of 1995. The document recognized the role of religion and religious institutions in the history of the United States and asserted that "the First Amendment permits--and protects--a greater degree of religious expression in public schools than many Americans may now understand." The Clinton memorandumoutlined several principles to guide public school districts in accommodating religious activity in schools. In support of curricula using religious material in the classroom, the 1995 Clinton memorandum stipulated that though "[p]ublic schools may not provide religious instruction, . . . they may teach aboutreligion"(emphasis not added). Curriculum examples included history of religion, comparative religion, Bible-as-literature, and the role of religion in the history of the United States.Curricula examining the Bible's influence in art and literature were taught in some public schools in the 1990s but were not free of contention. Organizations that actively pursued development and adoption of religious-oriented curricula in public schools included the Freedom Forum First Amendment Center ofVanderbilt University and the National Council on Bible Curriculum in PublicSchools. Not all Christian organizations supported efforts to place religious materials in the classroom, choosing instead to emphasize respect and recognition of the increasing religious diversity in the nation.Still, the 1990s witnessed a trend toward more leniency in introducing religious symbols in public places. The public supported efforts to bring moral values, as exemplified in the Ten Commandments, back into public activities as long as harmony and inclusiveness was promoted rather than division

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or exclusion. For instance, some Muslim groups did not oppose posting the Ten Commandments as long as it was not interpreted as excluding beliefs of other religions, but accepted as representative of the rich religious tradition in America.Toward the end of the 1990s, the place of religion in public schools continued to be the subject of substantial debate.Aside from religion issues, the Stone decision also demonstrated an increased willingness of the Court to question the intent behind state legislation. The Court generally avoided passing judgement on the legitimacy of legislative actions in previous decisions. This new tendency led to more debate over the appropriateness of Stone and similar Supreme Court findings issued since.Read more: http://law.jrank.org/pages/12581/Stone-v-Graham.html#ixzz0QzvBqqX1

12. EPPERSON V. ARKANSAS, 12 NOVEMBER 1968

Appellant: Susan EppersonAppellee: State of ArkansasAppellant's Claim: Arkansas law stating one can not teach evolution is unconstitutional.

Justices for the CourtHugo Lafayette Black, William J. Brennan, Jr., William O. Douglas, Abe Fortas(writing for the Court), John Marshall Harlan II, Thurgood Marshall, PotterStewart, Earl WarrenDecisionThe law against the teaching of evolution is unconstitutional.

SignificanceThe decision demanded that governments refuse to favor any particular religion or religious theory over another.A young schoolteacher named Susan Epperson found herself caught in a dilemmaat the beginning of the 1965 school year. Little did she know at that time that her dilemma would end up being solved by the justices of the U.S. SupremeCourt in the landmark case Epperson v. Arkansas. Reminiscent of the famous Scopes monkey trial, Tennessee v. Scopes, of 1925, the significance of Epperson v. Arkansas is that our government cannot and should not favor any one religion over another.At the beginning of the 1965 school year, Epperson, a woman with a master's degree in zoology from the University of Illinois, began to review the textbook she was told to use to teach her tenth grade biology class. A biology teacher at Central High School in Little Rock, Arkansas, Epperson realized, afterreviewing the chapters in the textbook, that one of the chapters contained information about evolution. The theory of evolution is that humans developed over time from lower animal forms.Epperson's dilemma was this: she was supposed to teach the class using the textbook. However, she knew if she taught the chapter on evolution contained inthe textbook that she would be fired. She knew the school system would seekher dismissal because on the law books in the state of Arkansas at that timewas a statute that made it against the law to teach evolution in any state supported school.Filing suit in the local chancery court, Epperson sought to have the law deemed null and void and she wanted to prevent the school system from firing her.The chancery court said that the law violated the First and Fourteenth Amendments to the U.S. Constitution. The First Amendment grants all Americans freedom of speech and prevents the government from favoring one religion over another. The Fourteenth Amendment extends the First Amendment to the states. Epperson's dilemma continued as the case was appealed. The Arkansas Supreme Court reversed the decision of the chancery court. In a short statement, the Arkansas Supreme Court said the law was legal because the state has the power todecide what the curriculum is in its public schools. However, the Arkansas Supreme Court did not express any opinion as to whether or not the law allows ateacher to explain the theory

of evolution.Next came Epperson's appeal to the U.S. Supreme Court. The High Court reversed the Arkansas Supreme Court's decision and said that the Arkansas law couldnot stand. Justice Fortas explained the U.S. Supreme Court's view. He said that our democratic government must remain neutral when it comes to religious theory. In expressing the views of the Court, Justice Fortas quoted other precedent-setting cases including Watson v. Jones. In 1872, in Watson v. Jones, the U.S. Supreme Court said "the law knows no heresy, and is committed to the support of no dogma, the establishment of no sect."In comparing Epperson v. Arkansas to other similar cases, the U.S. Supreme Court, it should be noted, took similar positions in two other cases. The High Court held closely to the separation between church and state in 1962in Engel v. Vitale and in 1963 in Abington School District v. Schempp.The U.S. Supreme Court in Epperson v. Arkansas told the American public, and especially its school systems that the protection of constitutional freedoms is vital in our schools. In addition to quoting from Watson v. Jones, Justice Fortas talked about other cases including Everson v. Boardof Education. In Everson v. Board of Education, the U.S. Supreme Court upheld a state law that provided free bus service to school children, both public and private school children. During the Eversoncase the HighCourt said, "Neither a state nor the federal government can pass laws whichaid one religion, aid all religions, or prefer one religion over another."In Epperson v. Arkansas the U.S. Supreme Court went as far back as toquote Thomas Jefferson. Jefferson said the First Amendment to the Constitution was intended to erect a "wall of separation" between church and state. In making its decision in Epperson, the U.S. Supreme Court was aided by the precedents set in previous freedom of religion cases.In summary, Epperson v. Arkansas is significant because it demanded governments refuse to favor any particular religion or religious theory over another. Governments must maintain a religious neutrality, the Supreme Court said in Epperson. If they do not, they are infringing on a person's constitutional rights set forth in the First and Fourteenth Amendments.Related CasesWatson v. Jones, 13 Wall. 679 (1872).Everson v. Board of Education, 330 U.S. 1 (1947).Engel v. Vitale, 370 U.S. 421 (1962).Abington School District v. Schempp, 374 U.S. 203 (1963).

13. EDWARDS V. AGUILLARD, 19 JUNE 1987

Appellant: Edwin W. Edwards, Governor of LouisianaAppellee: Don AguillardAppellant's Claim: The Creationism Act was legal.Justices for the CourtHarry A. Blackmun, William J. Brennan, Jr. (writing for the Court), ThurgoodMarshall, Sandra Day O'Connor, Lewis F. Powell, Jr., John Paul Stevens, ByronR. WhiteJustices DissentingWilliam H. Rehnquist, Antonin Scalia

Decision: The Creationism Act violated the Establishment Clause and was therefore unconstitutional.SignificanceThe case is significant because it reaffirmed that the advancing of any religious doctrine violates the Establishment Clause of the First Amendment to theU.S. Constitution.In June of 1987, the Supreme Court voted to reject a law passed by the stateof Louisiana. The rejection of this Louisiana law was to set a precedent in religion and freedom of religion-related cases. The Louisiana law required teachers in the state to teach "creationism." Although some people believe creationism, also known as creation science, to be a fact, others believe it to bea theory--a proposed but unverified explanation. In dealing with the case ofEdwards v. Aguillard, the High Court had to deal with many issues including creation science, evolution, religion, and education. In the end, theSupreme Court ruled that the Louisiana law

Smoky’s KnowNotes / Consti 2 / Religion Clauses 9

violated the Establishment Clauseof the First Amendment to the U.S. Constitution. Because of this violation, the law was found to be unconstitutional.To understand this case one must first understand the Louisiana law. Then onemust come to understand how the Supreme Court justices arrived at their decision. The state of Louisiana passed a law it called "The Creationism Act." Under the Creationism Act teachers were required to teach both the theory of evolution and the theory of creation science.The theory of evolution states that human beings evolved, or came into beinggradually, over time. The theory of creation science disagrees with the theory of evolution. Creation scientists believe the origin of life did not happenover time, and that humans did not evolve from lower life forms. Louisiana'sCreationism Act said if one theory is taught to students, then both theoriesmust be presented. Challenging the Creationism Act were Louisiana parents, religious leaders, and teachers. A Federal District Court declared that Louisiana's Creationism Act was unconstitutional and both the court of appeals andthe U.S. Supreme Court upheld the Federal District Court's decision.The U.S. Constitution's Establishment Clause prohibits the passage of any lawthat takes away an individual's freedom of religion, whether that person selects a religion or decides on no religion at all. The question the Supreme Court asked itself was did the passage by the state of Louisiana of its Creationism Act violate the Establishment Clause. Based on its long history dealingwith the religion clauses of the First Amendment, the Supreme Court had developed what became known as the Lemon test. The Lemon test allowed the SupremeCourt to decide whether or not a certain piece of legislation violated the Establishment Clause.The Lemon test itself evolved over time. Many cases, including Everson v.Board of Education, Engel v. Vitale, McGowan v. Maryland,Committee for Public Education and Religious Liberty v. Nyquist, and the case lending the test its name--Lemon v. Kurtzman in 1971--among others, provided precedents on which to build the Lemon test. The Lemon test theSupreme Court used to decide whether or not the act violated the clause included the justices' answers to three separate questions. The justices found that the answers to their questions were: 1) Yes, the legislature passed the law with a non-religious purpose. 2) Yes, the primary effect of the law was toadvance or inhibit religion. And, 3) Yes, the law created an excessive meshing of religion with government. So, by answering yes to its three part question concerning the violation of the Establishment Clause, the Supreme Court ruled against the passage of the act.The Supreme Court, in making its decision, brought to light several points about the Creationism Act that were discriminatory. The act required that teachers develop curriculum guides for creationism but not for evolution. The Supreme Court said this was discrimination. The act forbdale local school boardsfrom discriminating against creation=scientists, but not teachers who taughtthe theory of evolution. The Supreme Court said this was discrimination. And,the High Court noted, the act endorses the creation-science=held religious belief that a supernatural being created human beings. This, the justices agreed, violates the First Amendment to the Constitution.By challenging the constitutionality of the act in court, the Louisiana parents, teachers and religious leaders participated in what became a landmark case dealing with freedom of and from religion. After the Supreme Court ruled, Louisiana Governor Edwards along with others involved in the educational system in Louisiana agreed not to implement the Creationism Act. In summary, the case is significant because it reaffirmed that the advancing of any religiousdoctrine violates the Establishment Clause of the First Amendment to the U.S.Constitution.Related CasesEverson v. Board of Education, 330 U.S. 1 (1947).McGowan v. Maryland, 366 U.S. 429 (1961).Engel v. Vitale, 370 U.S. 421 (1962).Lemon v. Kurtzman, 403 U.S. 602 (1971).

Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756 (1973).

Creationism ActThe Creationism Act was a 1981 Louisiana law that sought to bar the teachingof evolution in public school classes unless "creation science" was also taught as a possible origin of organic life. The theory of evolution proposes that animals and humans evolved from one or two primitive life forms over 3 million years ago in a process of natural selection. Creation science, however, dates the start of human life on earth back 6,000 years ago as described in the book of Genesis in the Bible.SourcesSanders, Alain I. "LAW: Memories of the Monkey Trial."Time, 29 June 1997.

Benen, Steve. "Evolving Debate." Church & State, October 1998, p. 13.

Biskupic, Joan, and Elder Witt, eds. Congressional Quarterly's Guide to the U.S. Supreme Court, 3rd ed. Washington, DC: Congressional Quarterly, Inc., 1996.

Lemonick, Michael D. "Dumping on Darwin." Time, March 18, 1996, p.81.

Schmidt, Karen. "Creationists Evolve New Strategy." Science, July26, 1996, p. 420.

15. LYNCH V. DONNELLY, 5 MARCH 1984

Petitioner: Lynch, Mayor of Pawtucket, et al.Respondent: Donnelly, et al.Petitioner's Claim: A nativity scene should be allowed in public view.Justices for the CourtWarren E. Burger (writing for the Court), Sandra Day O'Connor, Lewis F. Powell, Jr., William H. Rehnquist, Byron R. WhiteJustices DissentingHarry A. Blackmun, William J. Brennan, Jr., Thurgood Marshall, John Paul StevensDecision: The nativity scene was allowed to remain in view.SignificanceThe case led many to believe that the Court was tempering its stand for the separation of church and state.The case of Lynch v. Donnelly, decided by the U.S. Supreme Court 5 March 1984, became a landmark case regarding the separation of church and state.The case began as a dispute between a group of people who wanted a "creche"displayed in public and a group who did not. A "creche" is a nativity scene,a scene depicting the birth of Jesus Christ. The Supreme Court justices decided the "creche" displayed in Pawtucket, Rhode Island, did not violate the Establishment Clause of the U.S. Constitution. The Establishment Clause outlinesthe government's role in the separation between church and state. Part of the First Amendment to the U.S. Constitution, the Establishment Clause clearlyprohibits any official establishment of a religion.The case began when the city of Pawtucket put up its annual Christmas display. The display was put up in Pawtucket's downtown area as it had been for 40 years. The display contained other items besides the "creche." Among the otheritems were a Christmas tree, colored lights, Santa Claus's home, and animalfigures.After the display containing all these items was erected, a group of people filed a lawsuit claiming the display violated the Establishment Clause. The group filing the suit included residents of Pawtucket, members of the Rhode Island affiliate of the American Civil Liberties Union, and the union itself.The decision in the case in district court commanded the city of Pawtucket not to include the "creche." The district court agreed that by including the "creche" the city had violated the Establishment Clause. The next stop in the appeals process was the First Circuit Court of Appeals. This court also commanded Pawtucket to remove the "creche," therefore upholding the decision of thedistrict court.However, the U.S. Supreme Court, in Lynch v.

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Donnelly, reversed the two lower court decisions, deciding to allow Pawtucket to display the "creche."The "creche" the High Court said, did not violate the Constitution's Establishment Clause.When the 5-4 decision of the U.S. Supreme Court was announced, the New York Times described it as a considerable modification of the existing linebetween church and state. Linda Greenburg of the New York Times wrote,"it significantly shifted the boundary in favor of religion."In previous precedent setting cases regarding challenges to the Constitution's Establishment Clause, the U.S. Supreme Court had voted against religion. The Court's apparent accommodation of religion contrasted with its previous decisions. In 1971, in the case of Lemon v. Kurtzman, a practice was declared unconstitutional because it did not have a legitimate non-religious purpose.The "Lemon Test"--a three part test used by Supreme Court justices to aid them in deciding if a practice had violated the Establishment Clause--came out of Lemon v. Kurtzman. However, in Lynch v. Donnelly, Chief Justice Burger stated that his court did not consider the "Lemon Test" as essential as other justices had in the past.Instead of using the Lemon Test as a barometer in their decision making process, several justices in Burger's Court substituted a new test. Their test wassimply the answer to the question of whether the Pawtucket practice of displaying the "creche" posed a real danger to the establishment of a state church. In other words, as Justice O'Connor stated at the time, whether the government in question intends to endorse or is perceived to be endorsing a particular religion.Justices Burger, White, Powell, Rehnquist, and O'Connor opined that the U.S.Constitution commands that there should not only be tolerance of all religions, but accommodation of all religions. The Constitution, these five justicesdeclared, forbids hostility toward any religion. In voting to reverse the twolower court decisions, these five Justices asserted that Pawtucket has not advanced any religion. The display, they affirmed, merely celebrates a holidayrecognized by Congress as a national tradition.Although five of the nine Supreme Court justices believed the "creche" did not pose any real danger, four justices dissented. Among the four was Justice Brennan. Brennan said that the "maintenance and display at public expense of asymbol as distinctively sectarian as a creche simply cannot be squared withour prior cases."Brennan and the other dissenters, Justices Marshall, Blackmun, and Stevens, said the "creche" was a recreation of an event that is at the center of Christianity. And, the dissenting justices concurred, Pawtucket's action in displaying the "creche" was a step toward establishing a religious preference. In summary, the dissenting justices agreed with the American Civil Liberties Unionand the National Council of Churches that the display violated the Establishment Clause. Still, the Supreme Court's decision did not totally clarify theHigh Court's position on the Establishment Clause. Uncertainty was maintainedbecause the justices reviewed Lynch v. Donnelly while taking into consideration that there were other items in the holiday display. Brennan and the other dissenters noted that it was not clear which way the Supreme Court would have voted had the display only contained the "creche."Five years later, in a similar case the Supreme Court would rule differently.In 1989, in County of Allegheny v. ACLU the Supreme Court ruled thata "creche" displayed in a public building without anything else present in the display violated the Establishment Clause. Still,Lynch v. Donnellyis significant because it suggested an allowance for some religious adjustment in the concept of the separation of church and state.Related CasesLemon v. Kurtzman, 403 U.S. 602 (1971).County of Allegheny v. ACLU, 492 U.S. 573 (1989).

Public Religious DisplaysSeasonal religious displays on public property, such as a manger scene at Christmas, are often challenged in court on

the grounds that they depict religious matter and therefore violate the concept of separation of church and state. Proponents say that the displays do not violate the First Amendment becausethey are not coercive in nature and do not pressure anyone to hold a specific religious belief. Those who oppose the displays counter that religious symbols do not have a place on public government property. When it comes to Supreme Court rulings on the issue, the Court has taken a middle ground. The Courthas upheld religious symbols in a holiday display if the display includes symbols from other religions or nonreligious items.

16. COUNTY OF ALLEGHENY V. ACLU, 3 JULY 1989

Petitioner: County of AlleghenyRespondent: American Civil Liberties Union, et al.Petitioner's Claim: That two separate holiday displays (involving a creche and a menorah, respectively) on public property do not violate the First Amendment's Establishmentof Religion Clause.Justices for the Court(Part one, against the creche display) Harry A. Blackmun (writing for the Court), William J. Brennan, Jr., Thurgood Marshall, Sandra Day O'Connor, John Paul Stevens; (part two, for the menorah display) Harry A. Blackman (writing for the Court), Anthony M. Kennedy, Sandra Day O'Connor, William H. Rehenquist,Antonin Scalia, Byron R. WhiteJustices Dissenting(Part one, for the creche) Anthony M. Kennedy, William H. Rehnquist, AntoninScalia, Byron R. White; (part two, against the menorah) William J. Brennan, Jr., Thurgood Marhsall, John P. Stevens Decision: By different majorities, the Court banned the display of the creche but permitted the display of the menorah.

SignificanceThe Supreme Court found that Allegheny County violated the Establishment Clause by displaying a creche in the county courthouse because it had the unconstitutional effect of conveying government-endorsed Christianity. However, themenorah, which was displayed in the City-County Building along with a Christmas tree, was permissible because it was displayed in such a way as to be viewed as a secular symbol, given "its particular, physical setting." This decision established that the main factor in determining the constitutionality of public holiday decorations is the context in which they are displayed.During every Christmas holiday season since 1981, a creche donated by the Holy Name Society, a Roman Catholic organization, had been on display in front of the grand staircase inside the Allegheny County Courthouse. The creche borea plaque attributing its donation to the Holy Name Society. Along with figures of Jesus, Mary, Joseph, shepherds, animals, and wise men, the creche depicted an angel bearing a banner that said, "Gloria in Excelsis Deo!" which translates as "Glory to God in the highest." The creche stood alone in front of the staircase as the main element on display, surrounded by poinsettias and two evergreen trees, as placed there by the county. Santa Claus figures and other Christmas decorations were arranged around the courthouse, but no other secular decorations were displayed near the staircase.The county used the creche as the setting for its Christmas carol program, which also included other songs. From 3 December to 23 December 1986, high school choirs and other musical groups performed a two-hour program each weekdayat lunchtime. The county issued a press release identifying the program as acounty-sponsored event and connected the program to the creche.A block away from the courthouse, another holiday display involving a Christmas tree and menorah was placed in front of the City-County Building, a building owned jointly by the city of Pittsburgh and Allegheny County. The 45 foottree was

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erected and decorated by city employees in keeping with a long-standing tradition. Next to the tree was an 18-foot menorah. The menorah was ownedby Chabad, a Jewish organization, but since 1982, it had been stored, displayed, and removed by the city each year. At the tree's base was a sign that bore the mayor's name and the message: "During this holiday season, the city ofPittsburgh salutes liberty. Let these festive lights remind us that we are the keepers of the flame of liberty and our legacy of freedom." The tree was up from 17 December 1986 to 13 January 1987 and the menorah from 22 December 1986 to 13 January 1987.On 10 December 1986 the Pittsburgh chapter of the American Civil Liberties Union (ACLU) and seven local residents filed suit in Federal District Court toenjoin Allegheny County from displaying the creche and the city of Pittsburghfrom displaying the menorah. The ACLU claimed that displays such as the creche and the menorah violate the Establishment of Religion Clause of the FirstAmendment.On 8 May 1987 the district court denied the ACLU's claim. Citing Lynch v.Donnelly (1984), a landmark Supreme Court decision that established a constitutional mandate for religious accommodation, the court held that the creche and the menorah did not violate the Establishment Clause. The court concluded that the displays had a secular purpose and did not create an excessive entanglement of government with religion.The ACLU filed an appeal with the U.S. Court of Appeals. A divided panel of the court of appeals reversed the district court's decision. The court statedthat despite being located near secular decorations, "neither the creche northe menorah can reasonably be deemed to have been subsumed by a larger display of non-religious items." The displays, the court found, had the impermissible effect of endorsing religion, and thus, violated the Establishment of Religion Clause of the First Amendment.The Supreme Court decided the case on 3 July 1989. By different majorities the Court found that the menorah did not advance religion in such a way as to violate the Establishment of Religion Clause, but the creche did violate the Establishment Clause because the county, in associating with the display, wasnot merely acknowledging Christmas as a cultural phenomenon, but celebratingand promoting a holiday with a blatant Christian message.Justice Blackmun, writing for the majority, said that the menorah was displayed in such a way as not to endorse religion but was used to create a secularwinter holiday setting, of which Christmas and Chanukah are both part. Chanukah--for which the menorah is the primary symbol--has both religious and secular connotations. Although the menorah is a symbol with religious meaning, Chanukah does not have a preeminently secular symbolic equivalent, as Christmashas with Santa Claus and reindeer. Blackmun said, "[I]t would be a form of discrimination against Jews to allow Pittsburgh to celebrate Christmas as a cultural tradition while simultaneously disallowing the city's acknowledgment ofChanukah as a contemporaneous cultural tradition."In her opinion, Justice O'Connor expressed the view that the creche display was different than the one in Lynch v. Donnelly. In Lynchthe creche was on private property and included traditional secular holiday symbols, while the Allegheny creche had the unconstitutional effect of conveying government-endorsed Christianity. She further concluded that the menorah, in its"particular physical setting" did not have the effect of endorsing religion,regardless of whether the menorah is considered a religious or secular symbol. She argued that the display conveyed "a message of pluralism and freedom to choose one's own beliefs."Justice Kennedy, along with Justices White and Scalia and Chief Justice Rehnquist, dissented on the creche decision. Kennedy wrote: "This view of the Establishment Clause reflects an unjustified hostility toward religion, a hostility inconsistent with our history and our precedents . . . The creche displayis constitutional, and, for the same reasons, the display of a menorah by thecity of Pittsburgh is permissible as well."

The Controversy ContinuesThe debate over religious displays in Pittsburgh, as well as in the rest of the United States, has not ended since the Allegheny decision. In 1996The Ku Klux Klan petitioned to display a cross bearing the Klan's insignia inthe county courthouse courtyard. The petition came just five days after a coalition of local black clergy asked the commissioners for permission to erecta creche in the courthouse courtyard. Allegheny County Commissioner Bob Cranmer withdrew his support of the creche display after receiving the Klan's request. Cranmer said, "I think it is necessary that we take a prudent positionand not permit the use of the courtyard as a public forum."

Related Cases

Lemon v. Kurtzman, 403 U.S. 602 (1971). Lynch v. Donnelly, 465 U.S. 668 (1984). Scarsdale v. McCreary, 471 U.S. 83 (1985). Capitol Square Review and Advisory Board et al. v.

Pinette et al.,515 U.S. 753 (1995).

Ahn, Laura. "This is Not a Creche." Yale Law Journal, April 1998, pp. 1969-1974.

Hall, Kermit, ed. The Oxford Companion to the Supreme Court of the United States. New York: Oxford Press, 1992.

Witt, Elder, ed. The Supreme Court A to Z. CQ's Encyclopedia of American Government. Washington, DC: Congressional Quarterly, Inc., 1993.

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