Lecture 11 Chapter 4

1. Lecture 11Chapter 4 Establishment Clause III (Religion and Prayer in School and Other Places)

2. This Lecture • More on the Establishment Clause • Pages 159-176 • Access to Public Facilities and Funds • Teaching Religion in Schools • Prayer in Schools • Prayer at other Public Events • Edwards v. Aguillard (1987) • Town of Greece v. Galloway (2014) • Also, pay close attention to the note cases they are important too! • You need them to see how Lemon has been changed/added to

3. Release Time • Illinois ex rel. McCollum v. Board of Education (1948) • A release time program for religious instruction • Struck down because it occurred on campus • Zorach v. Clausen (1952) • The Court approved a program in New York where students would be released from classes to attend religious instruction off campus • Douglas said Separation of Church and State was not required in all instances, which he found would be hostile for each side • He stated, “We are a religious people whose institutions presuppose a Supreme Being” • And acknowledged that this was for religious instruction • Black (Jackson and Frankfurter had own dissents) felt this was the same as McCollum • Thought this was a major aid to religion and would reject all release time programs

4. Access to Public Facilities I • Widmar v. Vincent (1981) • Struck down a university policy that denied a religious student group the same access to rooms as a non-religious one • Powell thought this could lead to excessive entanglement with religion • He believed that there should be neutrality among groups (secular policy) • There is no advancement of religion • This could also be viewpoint discrimination under the limited public forum doctrine

5. Access to Public Facilities II • Board of Education of Westside Community School v. Mergens (1990) • The Equal Access Act of 1984 required a limited public forum in secondary schools • This included religiously based groups • An 8-1 Court upheld the law • O’Connor used the Lemon Test and found no government advancement (she brings in endorsement) of religion by allowing religious groups to use public schools rooms • The secular purpose was to prohibit viewpoint discrimination • Kennedy (joined by Scalia) would have preferred a coercion approach • Lamb’s Chapel v. Center Moriches Union Free School District (1993) • School district could not prohibit a religious group from using facilities to show films when they had allowed non-religious groups to do the same thing • To do so would be viewpoint discrimination • Scalia seems to want to do away with the Lemon Test

6. Access to Public Facilities III • Rosenberger v. University of Virginia (1995) • A religious group was denied activity fee funds for a newspaper because the university prohibited money for religious activities • Kennedy ruled that this was viewpoint discrimination • However, O’Connor still espoused her endorsement test • Lemon isn’t mentioned much but survives

7. Teaching Religious Principles in Schools • Scopes Monkey Trial • Teacher convicted for teaching the theory of evolution • Epperson v. Arkansas (1968) • An Arkansas teacher feared prosecution so she challenged a state law making it a crime to teach the theory of evolution after a textbook was adopted with it • She wanted the courts to overrule the law • An unanimous Court overturned the law • Fortas found that the was to not allow certain theories that went against a certain biblical theory of the origin of man • The State was essentially siding with fundamentalist Protestants

8. Edwards v. Aguillard (1987) • Background • Louisiana law prohibited the teaching of evolution unless creationism was taught along side it • Louisiana saw evolution as the religion of secularist • And that creationism was in fact science • Scientists disagreed

9. Edwards v. Aguillard- II • Arguments • For Edwards and Louisiana • Previous decisions reference God • Creation science is no less scientific than evolution science • The law has a secular purpose of academic freedom • For Aguillard • The law endorses one particular religious belief of creation • There was no secular purpose of the law • This allows for the excessive entanglement of religion and state

10. Edwards v. Aguillard- III • Brennan, J. rules for a 7-2 Court • He applies the Lemon Test • It must pass all three prongs • He finds the academic freedom justification for secular purpose as a sham • The act favors creation science, and tries to discretion evolution • The purpose was to endorse and advance the religious viewpoint of creationism, and was based on it • There was therefore a religious, not a secular purpose • It ends up giving symbolic and financial support for a religious purpose (excessive entanglement) • There were concurrences by White and Powell (joined by O’Connor)

11. Edwards v. Aguillard- IV • Scalia, J. joined by Rehnquist, C.J. dissenting • He does not see this law as an endorsement • Even though it was largely supported by organized religious and their adherents • He also employs the slippery slope argument • He feels there is evidence to support a secular purpose • The purpose is to give both sides  not to censor creation science • Key is the sincerity of the legislators • He, like Rehnquist, would reject the Lemon Test • He does not like looking to purpose (this fits his theory on statutory interpretation) • Would require at looking at all legislator’s thoughts in voting for a bill • Would love to eliminate prong #1

12. Wallace v. Jaffree (1985) • Last lecture, we read cases (Engel v. Vitale and Abdington) that ruled against school prayer required by the state • But what about other situations? • Wallace v. Jaffree (1985) • Alabama law required a moment of silence at the beginning of the day for the purpose of “mediation or voluntary prayer” • Stevens, for a 6-3 majority found this by its very language was for a religious purpose • Also that it essentially was endorsing religion, not being neutral • Rehnquist criticizes the Lemon Test in his dissent

13. Lee v. Weisman (1992) • What if we move outside the classroom? • Lee v. Weisman (1992) • A school district in Rhode Island selected on a rotating basis, a clergy member to give a prayer at the beginning and end of the graduation ceremony • The prayer was non-sectarian (a major focus of Souter, J.) • Kennedy, J. writes for a 5-4 Court overturning this practice • He found this, “a state-sponsored and state-directed religious exercise in a public school” • He also sees coercion (indirect) in that students must stand and be silent and respectful • Also a problem was the state role in selecting the clergy member • Scalia, J. (joined by White, Thomas, J.J. and Rehnquist, C.J.) sees non-sectarian state prayers as part of the long tradition of the country

14. Santa Fe Independent School District v. Doe (2000) • Santa Fe Independent School District v. Doe (2000) • Students in a rural Texas school district allowed for a student led prayer at the beginning of football games • The school district said that attendance was voluntary, and all done by students • Stevens, J. for a 6-3 majority disagrees with the policy • Because there was a school policy endorsed by the board, use of public facilities and equipment, and school sponsored events, this was public not private speech • One could see this therefore as an endorsement by the school system of the message • Some students and faculty members are required to be there so there is coercion

15. Marsh v. Chambers (1983) • So what about adults? • Marsh v. Chambers (1983) • Challenge to the Nebraska Legislature hiring a chaplain (Presbyterian) with public funds, who delivered prayers to open sessions • Burger, C.J. for a 6-3 Court upholds this practice • He did not apply the Lemon Test • Instead he looked at historical custom and that this went back to the founding • In a later case, Justice Brennan (Lynch) calls practices such as these “ceremonial deism” • “Simply a tolerable acknowledgment of beliefs widely held among the people of this country” • Brennan, J. (joined by Marshall, J.) would have applied Lemon • Stevens, J. questioned the hiring of one particular religion as chaplain for 16 years

16. Town of Greece v. Galloway (2014) • Background • The Town of Greece is a suburb of Rochester • Before Council meetings, they would have a local clergy member come in and recite a prayer before the meetings • A town employee contacted all clergy member in the town to participate • Anyone, even atheists could participate • It was all volunteer, and the town had no role in the content • However, because of the religious makeup of the town, nearly all were sectarian Christian • Two women, one Jewish, one atheist objected to the practice • They called for only non-sectarian prayers • The Town kept doing it • They sued won at the district court, lost at the 2nd Circuit

17. Town of Greece v. Galloway- II • Arguments • For the Town of Greece • This practice goes back to the founding • Marsh v. Chambers controls • The town does not endorse or disparage any faith • For Galloway and Stephens • Some citizens may be required to attend meetings, so it is not voluntary for them • The board has not been inclusive, but sectarian in their choices • Since Christian prayers predominate, that is an endorsement

18. Town of Greece v. Galloway- III • Kennedy, J. rules for the Town in a 5-4 opinion • (except for the coercion portion) • He finds that Marsh is the controlling opinion and cites the history of these types of prayers • He also find that this was not a “relic of time” • These prayers are not required to be sectarian • To require this would be for the government to get even further involved and potentially writing the prayers or editing the content (excessive entanglement) • He finds the town made reasonable efforts for religious diversity and that they did not discriminate, but did not have to make special efforts for diversity by going out of town

19. Town of Greece v. Galloway- IV • More from Kennedy, J. • He then moves on to coercion • He finds the principal audience the lawmakers not the audience • However, he says it should be solemn and respectful in tone • It would be different if aimed at the audience members • The fact that the plaintiffs felt offense at the prayers does not equal coercion • Adults often encounter speech they find disagreeable • This is how he distinguishes Lee v. Weisman (1992) • Nothing shows that citizens are dissuaded from attending

20. Town of Greece v. Galloway- V • Thomas, J. joined by Scalia, J. concurring in part and concurring in judgment • He has a different view of coercion • He sees it as only coercion of religious orthodoxy and financial support by force of law and threat of penalty • Subtle collective pressures are not coercion • Writing only for himself, Thomas does not think the Establishment Clause should be applicable to the states and localities • Alito, J. gives us a history lesson • He also takes issue with Kagan, J. saying she would essentially ban all public prayer

21. Town of Greece v. Galloway- VI • Kagan, J. joined by Ginsburg, Breyer, and Sotomayor, JJ, dissenting • She says she agrees with Marsh • She says the town should lose because their prayers were overwhelmingly sectarian • The town didn’t do enough for religious diversity • Those in the audience wanting something from the board see that they have chosen Christian clergy time after time • They may feel they need to pretend to pray like the others • She also says that it must not be a prayer free zone • They just need to expand who they are bringing in

22. Town of Greece v. Galloway- VII • Breyer, J. also dissented • He sees this bringing about social conflict • He also sees the town did not work hard enough to bring in other minority faiths to give the prayers

23. Next Lecture • We will finish up Chapter 4 and the Religion Clauses • Pages 176-190 • Religious displays in public • Government involvement in religious organizations