religious freedom & establishment cause, dr. w.a. kritsonis, public school law

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Religious Freedom

The Establishment Clause

William Allan Kritsonis, PhD



Establishment Clause Jurisprudence

• The Court's decisions here tend to be the

most controversial and the most and

inconsistent in terms of legal reasoning.• A few important cases in the 1940's but

most establishment clause cases came to the

court starting in the 1960's to date.



Underlying judicial reasoning

• 1. to avoid denominational hostilities

among a heterogeneous population.

• 2. a concern with religion staying private

and personal.

• 3. respect for feelings of the few who may

be ostracized because of unconventionalreligious beliefs.



Wall of separation between

Church and State

• What does this phrase mean? That is:

• How did Jefferson mean it in the famous 1802

letter to the Danbury Baptists?

• How did other framers understand the

establishment clause?



Wall of separation between

Church and State

• What does this phrase mean?

• Separatist: a solid wall of separation between

religion and government (church & state).

• Accommodationist (2 versions):

• Nondiscriminatory support or aid of all religions

constitutionally permissible.

• Establishment Clause only bars the adoption of an

official national religion.



Original intent of framers

• Many studies have shown that the framers

disagreed on the meaning of establishment, but the

majority likely agreed with an accommodationist position, as the text notes (p. 145).

• Yet those who were most influential in drafting

the 1st Amendment – Jefferson & Madison – were

separatists.

• Therefore, it is difficult to use the intent of the

framers as a guideline.



Two perspectives on establishment

framers’ intent

• Non-preferentialist – consistent with the

accommodationist position

• Preferentialist – consistent with the

separatist position.



Non-preferentialists

• Non-preferentialists argue that the framers did notintend to end government support of religion, onlysupport that gives preference to one denominationover another.

• They argue that many court rulings instead of being neutral to religion, have been hostile, withgovernment favoring non-religion over religion.To be neutral, government should supportreligious activities the same as it supportsnonreligious.



Non-preferentialists

• In addition, they believe the framers intended for

the 1st Amendment only to bar the establishment

of a national church. Federal action that benefitsseveral religions is permissible.

• They argue that the framers saw religion as

important to government, because it instills

important civic values like honesty. You can seethis reasoning in the dissent of Justices Burger and

Rehnquist in Wallace v. Jaffree.



Preferentialists

• Preferentialists argue that – at the time of theframing of the 1st Amendment, state governmentsalready were rejecting formal churchestablishment, but most still provided aid tochurches on a non-preferential basis. This was thestatus quo situation that the framers intended torestrict. Otherwise, there would have been no need

to add this provision in the Bill of Rights.• They believe that government should be neutral

between religion and non-religion.



Preferentialists

• Appears to have been Madison’s view, both

while he was in Virginia and later in the

White House. Like Jefferson, he opposedsetting up a national holiday to thank God

(Thanksgiving) and the appointment of

chaplains for Congress and the military, onthe grounds that they violated the

establishment clause.



Everson v. Board of Education

(1947)

• Facts of the case:




(1947)


• A New Jersey law permitted local school boards to

cover transportation costs for children attendingeither public or private nonprofit schools. One

town reimbursed parents for transportation costs

to its four Catholic schools. Taxpayer Arch

Everson filed a suit against the board of education,challenging this as a violation of the establishment

clause.




(1947)

• Court ruling:




(1947)

• Court ruling: 5/4 not a violation.

• Court reasoning: authored by Justice Black.




(1947)

• Court reasoning: The establishment clause meansgovernment can’t set up a church, pass laws to aidone religion or all religions, give preference to a

religion, levy a tax, compel church attendance, etc.“In the words of Jefferson, the clause wasintended to erect a wall of separation betweenchurch and State.... that must be kept high andimpregnable.” In this case, he ruled, the wall had

not been breached. The program was general and benefited children. Black drew a parallel with police and firemen providing services.




(1947)

• Dissents?




(1947)

• Dissent (Jackson): Majority ignores how keyeducation is to the Catholic faith. This aid is thesame as if given directly to the Church. Program

is not neutral because it covers only public or private Catholic schools (not private secular or other religion). The analogy about firemen and

police is flawed. The true analogy is if “the policeshall protect pupils on the way to or from public

schools and Catholic schools but not while goingto or coming from other schools.” The tax benefitessentially sets up a religious test.




(1947)

• Dissent (Rutledge): “Any law respecting an

establishment of religion is forbidden.” The 1st

amendment requires “a complete and permanentseparation of the spheres of religious activity and

civil authority.” Free exercise & establishment

clauses correlate, and any government tax support

interferes with individual free exercise. Thesefunds raised by taxation & used to encourage

religious instruction.



Everson ruling outcomes

• Applied the Establishment Clause to the states

through the 14th amendment.

• Stressed certain core ideas: wall of separation ingeneral, but Court would consider if purpose of

the aid is secular; beneficiaries are children, not

religious institutions; & state is neutral in relations

between believers and non-believers.

• Illustrated how controversial this area would

become (text, pp. 151-152).



Everson test & different rulings

• Court sent mixed signals after Everson.

• Table 4-1: In the seven establishment clause

cases from 1947 to 1968, half reflected anaccommodationist view and half a separatistview.

• Emerging test articulated in AbingtonTownship v. Schempp (1963)



Emerging test in Abington Township

• Two questions:

• What is the purpose of the law?

• What is the primary effect of the law?

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

inhibit religion.



Emerging test after Walz v. Tax

Commission of NYC (1970)

• The Burger Court’s first establishment case

upheld a state property tax exemption for religious

institutions against a taxpayer challenge. Burger introduced a third question: was there an excessive

government entanglement with religion? In this

case, the entanglement greater if no tax

exemption. The exemption reinforced theseparation between government and religion.



Lemon v. Kurtzman/Earley v.

DiCenso (1971)





DiCenso (1971)

• Facts of the case: Pennsylvania state lawreimbursed nonpublic schools for teachingsalaries, books and secular instructional materials

for courses in math, language and physicaleducation. Lawsuit filed by Alton Lemon, ataxpayer and father of a child in public school.

• Rhode Island supplemented the salary of nonpublic school teachers who agreed not to teachreligious subjects. It turned out that all worked atCatholic schools. Program challenged by theAmerican Jewish Congress.




DiCenso (1971)

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

laws.

• Court reasoning:




DiCenso (1971)

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

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

• 2. its primary effect must be one that neither advancesnor inhibits religion.

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

• Where did these statutes fail this test?




DiCenso (1971)

• First prong - secular legislative intent – fine.

• Second prong - primary effect – unclear

• Third prong – excessive government entanglement – clearly

fails. To monitor compliance, government has to becontinuously involved in examining church records &surveilling teachers. Further, in Pennsylvania, the funds godirectly to the schools, not the teachers or parents.

• A broader entanglement also arises, because of the “divisive

political potential of these state programs.” Could result in political campaigns based on people's religious faith.




DiCenso (1971)

• Concurrence (Douglas): Tax payer funds

cannot be used even for the secular portion

of a parochial school, because a school is asingle organism operating under one

budget. Public subsidies of secular

activities frees up funds for those schools touse for religious instruction.




DiCenso (1971)

• Dissent in DiCenso (White): the plaintiffs

provided no evidence that non-secular

lessons were taught in secular classrooms inreligious schools. He argued that the 1st

amendment permits state funds to

supplement salaries of teachers of secular subjects.



Cases in the 1980s & early 1990s

• Aguilar v. Felton (1985)

• Zobrest v. Catalina Foothills School District (1993)

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

religious freedom & establishment cause, dr. w.a. kritsonis, public school law

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