Arc of 1st Amendment Establishment Clause Jurisprudence

Table of Contents

• Tests
• Levels of Generality
• Displays, Installations, Monuments
• Funding Cases
• Prayer in School
• Prayer in Deliberative Bodies

Definition per Everson v. Board of Education of the Township of Ewing 330 US 1 at 15 (1947)

• 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 form 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.

Tests:

"Grandfathering(?)" Test

• When the question arises whether to keep a religious monument in place (as opposed to a question whether to put up a new one), there should be a presumption that the monument is constitutional.
• Historical importance beyond its admittedly Christian symbolism confers constitutionality.
• "For some, that monument is a symbolic resting place for ancestors who never returned home. For others, it is a place for the community to gather and honor all veterans and their sacrifices for our Nation. For others still, it is a historical landmark." and "the purposes associated with an established monument, symbol, or practice often multiply."

Endorsement Test

• Applying endorsement to Lemon, O’Connor wrote that:
• "the purpose prong of the Lemon test asks whether government’s actual purpose is to endorse or disapprove of religion."
• The effects prong asks whether a governmental practice has "the effect of communicating a message of government endorsement or disapproval of religion."

Lemon Test

• Three prongs may be gleaned from our cases:
• First, the statute must have a secular legislative purpose; ["exclusively secular" objectives not required Lemon footnote 6]
• Second, its principal or primary effect must be one that neither advances nor inhibits religion,
• Finally, the statute must not foster "an excessive government entanglement with religion."

Levels of Generality:

• Private, individual, religious speech carried out in public. (Cantwell v. Connecticut)
• Privately funded and operated institutions.
• Publically funded institutions. (direct, indirect, tax-expenditure: state colleges, all colleges, churches, etc.) (Everson v. BoE, Walz v. Tax Commission, Locke v. Davey, Carson v. Makin)
• Publically operated and funded institutions, incidental religious use. (Shurtleff v. Boston "Christian flag." raising at Boston City Hall as one of many flown at distinct times.
• Publically operated and funded institutions, non-educational. (courts, legislatures, libraries, etc.) (Marsh v. Chambers, Town of Greece v. Galloway, Barker v. Conroy)
• Publically operated and funded institutions, educational, after school, optional attendance, student led. (Westside v. Mergens)
• Publically operated and funded institutions, educational, optional attendance, non-school instructor led. ( McCollum v. BoE)
• Publically operated and funded institutions, educational, optional attendance, student led. (Engel v. Vitale)
• Publically operated and funded institutions, educational, coerced attendance, religious prayer. (Abington v. Schempp, Wallace v. Jaffree)
• Publically operated and funded institutions, educational, coerced attendance, religious services. (military academies till 1972: Anderson v. Laird 466 F.2d 283 (D.C. Cir. 1972) (per curiam))
• Publically operated and funded institutions, religious tests: Test Acts and Oaths required of state officeholders. (Delaware, Georgia, Maryland, New Jersey, North Carolina, Pennsylvania, South Carolina, Vermont Constitutions adopted in the wake of the American Revolution)

Display, Installation, and Monument Cases:

Shurtleff v. City of Boston (2022)

Constitutional due to Free Speech and not an Establishment matter.
Boston acknowledges that it denied Shurtleff ’s request because it believed flying a religious flag at City Hall could violate the Establishment Clause.
But we have rejected that premise in the preceding pages. We must therefore consider Boston’s actions in light of our holding.
Under our precedents, and in view of our government-speech holding here, that refusal discriminated based on religious viewpoint and violated the Free Speech Clause.
Three factor test:

• whether Boston’s flag-raising program constitutes government speech. If so, Boston may refuse flags based on viewpoint.
• whether the public would tend to view the speech at issue as the government’s.
• whether Boston’s refusal to allow Shurtleff and Camp Constitution to raise their flag amounted to impermissible viewpoint discrimination.

American Legion v. American Humanist Association (2014)

Constitutional due to secularization and passage of time.
Secularized meaning to Bladensburg Cross.
With the passage of time use of religious symbols becomes presumptively Constitutional.
Lemon Test discarded.

Van Orden v. Perry (2005)

Constitutional due to mixed purpose and passage of time.
no single mechanical formula that can accurately draw the constitutional line, a mixed but primarily nonreligious purpose based upon the "context of the display" and the "circumstances surrounding the display’s placement"
long history of usage [40 years].

County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter (1989)

Violation of the Establishment Clause
Creche inside the courthouse unmistakably endorsed Christianity in violation of the Establishment Clause. By prominently displaying the words "Glory to God for the birth of Jesus Christ," the county sent a clear message that it supported and promoted Christian orthodoxy.

Lynch v. Donnelly (1984)

Constitutional
Christmas display located in the city's shopping district. The display included such objects as a Santa Claus house, a Christmas tree, a banner reading "Seasons Greetings," and a nativity scene.
Endorsement Test (O’Connor, concurring) replaces Lemon Test:
Does the government “intend” to endorse religion?
Does the government activity in fact “convey” such an endorsement?

Funding Cases:

Carson v. Makin (2022)

Constitutional
Schools that provide religious, or “sectarian,” instruction may receive generally available tuition assistance payments to parents who live in school districts that do not operate a secondary school.

Trinity Lutheran Church of Columbia, Inc. v. Comer (2017)

Constitutional
Churches are eligible for an otherwise neutral and secular aid program violates the First Amendment’s guarantee of free exercise of religion. Playground Scrap Tire Surface Material Grants that provide funds for qualifying organizations to purchase recycled tires to resurface playgrounds

Locke v. Davey (2004)

Violation of the Establishment Clause
This case involves the “play in the joints” between the Establishment and Free Exercise Clauses. A state does not violate the First Amendment's free exercise clause when it funds secular college majors but excludes devotional theology majors.

Agostini v. Felton (1997)

Constitutional
The Establishment Clause allows public school teachers instruct in parochial schools. As such, one should no longer find that all entanglements between church and state have a distinctly positive or negative impact on religion. Modifies Lemon Test by allowing some measure of entanglement. Overrules Aguilar v. Felton after twelve years.

Aguilar v. Felton (1985)

Violation of the Establishment Clause
The Establishment Clause prohibits public school teachers instruct in parochial schools. The actions of school administrators and field supervisors who monitored classroom activities for religious content, posed constitutional problems for the majority. Involving agents of the city in extensive monitoring ....

Lemon v. Kurtzman (1971)

Violation of the Establishment Clause
The amount of oversight of teachers and curricula required to ensure that there is no unnecessary injection of religion into secular topics would require the government to become excessively involved in the nuances of religious education.
Lemon Test:
legitimate secular purpose, (intent) from Abington School District v. Schempp (1963)
does not have the primary effect of either advancing or inhibiting religion, (effect) from Board of Education v. Allen (1968) and
does not result in an excessive entanglement of government and religion from Walz v. Tax Commission (1970).

Walz v. Tax Comm'n of the City of New York (1970)

Constitutional
Church/religious property tax exemptions do not violate the Establishment Clause of the First Amendment

Everson v. Board of Education of the Township of Ewing (1947)

Constitutional
A New Jersey law authorized reimbursement by local school boards of the costs of transportation to and from schools, including parochial Catholic schools, does not violate the Constitution.

Prayer / Religious Instruction in School:

Kennedy v. Bremerton School District (2022)

Constitutional
First (?) case of school employee engaging in sincerely motivated religious exercise, giving thanks through prayer briefly by himself on the playing field not including students.

Santa Fe Independent School Dist. v. Doe (2000)

Violation of the Establishment Clause
District's policy permitting student-led, student-initiated prayer at football games violates the Establishment Clause.

Lee v. Weisman (1992)

Violation of the Establishment Clause
Coercion Test (Kennedy):
Constitution protects individuals from state coercion
directly: force of law and threat of penalty
indirectly: high school graduation those who attended would be psychologically coerced into approving of a religious practice to which they might object:

Board of Education of Westside Community Schools v. Mergens By and Through Mergens (1990)

Constitutional
Forming an after-school Christian club, run by students, meeting at Westside High School, is consistent with the Establishment Clause.

Edwards v. Aguillard (1987)

Violation of the Establishment Clause
A Louisiana law entitled the "Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction Act" prohibited the teaching of the theory of evolution in the public schools unless that instruction was accompanied by the teaching of creation science, a Biblical belief that advanced forms of life appeared abruptly on Earth.
Louisiana's law failed on all three prongs of the Lemontest.

Wallace v. Jaffree (1985)

Violation of the Establishment Clause
An Alabama law authorized teachers to conduct regular religious prayer services and activities in school classrooms during the school day violates the First Amendment's Establishment Clause.

Anderson v. Laird (1972) 2nd Circuit Court

Violation of the Establishment Clause
The requirement of mandatory chapel attendance for cadets and midshipmen at three federal military academies violates the First Amendment's Establishment Clause.

School Dist. of Abington Township v. Schempp (1963)

Violation of the Establishment Clause
Nonmandatory recitation of Bible verses and prayer
What the Framers meant to foreclose, and what our decisions under the Establishment Clause have forbidden, are those involvements of religious with secular institutions which

• (a) serve the essentially religious activities of religious institutions;
• (b) employ the organs of government for essentially religious purposes; or
• (c) use essentially religious means to serve governmental ends where secular means would suffice."

Engel v. Vitale (1962)

Violation of the Establishment Clause
The state cannot hold prayers in public schools, even if participation is not required and the prayer is not tied to a particular religion.

McCollum v. BoE (1948)

Violation of the Establishment Clause
Outside religious teachers hired by private third parties providing, volunatary, weekly religious instruction in public schools violates the Establishment Clause.

Prayer in Deliberative Bodies:

Barker v. Conroy (2019)

Constitutional
Since 1789, the House of Representatives has begun each legislative day with a prayer, a practice the Supreme Court has found compatible with the Establishment Clause. See generally Marsh v. Chambers, 463 U.S. 783 (1983).

Town of Greece v. Galloway (2013)

Constitutional
The Establishment Clause was never meant to prohibit legislative prayer, which created the proper deliberative mood and acknowledged religion's role in society.

Marsh v. Chambers (1983)

Constitutional
The practice of offering of a prayer at the beginning of each legislative session by a chaplain chosen by the state and paid out of public funds does not violate the Establishment Clause of the First Amendment. Burger abandoned the three-part Lemon Test, and rested the Court's opinion on historical custom.