The Establishment Clause

2019 Edition

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The

Establishment

Clause

Congress shall make no law respecting an

establishment of religion, or prohibiting

the free exercise thereof…

“…shall make no law respecting an

establishment of religion…”

• Comes from a fear of state sponsored religiono United States was founded by many who were fleeing religious persecution

o Still a cause for immigration today

• It’s about neutrality.o Cannot favor or disfavor any particular way

• Used to protect the rights of individuals of all

backgrounds, religious or not

• However… “play in the joints”o Locke v. Davey

Establishment v. Free Exercise

• One is used to affirmatively restrain the government

• The other is used to affirmatively protect the rights of an

individual

• They do not necessarily follow one another, but often

can.

• The goal is to maximize the freedom allowed to

individuals while minimizing any ill effectso Rights and noses

Lemon v. Kurtzman• Two laws being challenged

o Rhode Island was supplementing 15% of the salary of private school teachers

• 25% of all students, with 95% being affiliated with the Catholic Church

o Pennsylvania was reimbursing private schools for the costs of teaching secular

subjects

• Books and subjects were approved by the government

• Brought as both an Establishment and Free Exercise

case

Lemon v. Kurtzman• “The language of the Religion Clauses of the First

Amendment is, at best, opaque…”o Lemon, 403 U.S. at 612 (1971).

• Three main evils: sponsorship, financial support, and

active involvement of the sovereign in religious activityo Walz v. Tax Commission, 397 U.S. 664, 668 (1970).

• Lemon results in the culmination of different SCOTUS

cases into one test for the Establishment Clause

The Lemon Test• The statute must have a secular legislative purpose

• Its principal or primary effect must be one that neither

advances nor inhibits religiono Board of Education v. Allen, 392 U.S. 236, 243 (1968).

• The statute must not foster “an excessive government

entanglement with religion.”o Walz at 674.

Ultimately, all the precautions taken to avoid violating the

Establishment Clause are what violated it.

The Lemon Test?• The Endorsement Test from Justice O’Connor (Lynch v.

Donnelly)o An enhancement for the purpose and effect prongs of Lemon

o “send a message to nonadherent that they are outsiders, not full members of the political community” and “a message to adherents that they are insiders, favored members of the political community.”

o Lower courts not treat it as a Lemon alternative

• Justice Rehnquist in Wallace v. Jaffreeo As intended by drafters, it’s about preference of one sect over another

• Justice Scalia in Lamb’s Chapel (1993)As to the Court’s invocation of the Lemon test: Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District.

Lee v. Weisman• Robert E. Lee invites a rabbi to deliver a prayer

o Principal gives him a pamphlet describing what can and cannot be said

• Deborah Weisman challenges the prayer at graduation

• School maintained that prayer was voluntaryo Weisman could remain seated if she wished

o Attendance at the graduation was not required

• Ultimately, no injunction was placed and Weisman

attended

• Consider in light of Engel v. Vitale and Abington School

District v. Schempp

Lee v. Weisman cont.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 prayer 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 objector’s rights.

Lee v. Weisman, 505 U.S. 577 (1992).

The Coercion TestThe principle that the government may accommodate the

free exercise of religion does not supersede the

fundamental limitations imposed by the Establishment

Clause. It is beyond dispute that, at a minimum, the

Constitution guarantees that 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.”

Lee, 505 U.S. at 587 (1992).

Establishment Test Recap• Lemon Test

o Statute has a secular legislative purpose

o Whose principal or primary effect must be one that neither advances nor inhibits

religion

o The statute must not foster an excessive government entanglement with religion

• Note the word excessive

• The Endorsement Test (Modified Lemon)o Whether a particular government action creates in the mind of a reasonable

observer that the government is either endorsing or disproving of religion

• The Coercion Testo The government cannot coerce someone to participate, endorse, or otherwise

act in a way which establishes a state]religion or religious faith, or tends to do so.

A Note on Time• Throughout Establishment Clause jurisprudence, there is

importance placed on time and traditiono Legislative prayer as an example

o Military chaplains

• Things sometimes lose their religious trappingso Graduation regalia

o Christmas trees and public displays

• The amount of time something is around makes a big differenceo Van Orden v. Perry, the Decalogue had been put up in 1961 with the support of Cecil

B. DeMille

o Contrast with McCreary v. ACLU that was decided the same day, but the Decalogue there had only been up for a short period of time

• But there is always a line that can be crossedo County of Allegheny v. ACLU where a nativity scene was unconstitutional, but a

Christmas tree and Menorah display were okay

o 7 part decision, one of the most confusing in SCOTUS history

The Problem with the Establishment Clause

• The number of cases making their way to the Supreme

Court on the Establishment Clause have dwindledo Preferences has been given to Free Exercise

o Even then, it is almost always RFRA and RLUIPA

• The Tests being used are varied and there is no clear cut

rule as there is with Free Exercise cases

• Some of the Justices have been hostile with previous

Establishment Clause jurisprudenceo Don’t forget about Scalia’s “ghoul in the night.”

“Turning Off” The Establishment Clause

• As said, most litigation is coming from Free Exercise

jurisprudence

• Statutory laws are doing a better job of filling in the gaps

• Maybe more “play in the joints” is a good thing?

• Shifting cultural dynamics make it difficult for any real

establishment to take place anymoreo Maybe we have finally become the melting pot we expected

Counterpoint• Litigation is coming from RFRA, which means state and

local governments can do as they wanto New constitutional arguments aren’t developing so much as RFRA arguments

are

o Some states mirror the federal RFRA, but not all

• Maybe it’s Free Exercise that needs to be turned down

• This is a pendulum swing and not more “play in the

joints”

• Current cultural dynamics need the Establishment

Clause more than ever

TLC v. Comer• Church wants as grant for playground resurfacing

• Missouri has a Blaine Amendment in place

• The state argued that it was similar to Locke v. Daveyo There, Davey was denied a scholarship because of his plan to get a degree in

devotional theology.

• Ultimately, SCOTUS rules 7-2 against Missouri, with

Justices Sotomayor and Ginsburg disenting

• It isn’t that easy

Breakdown of Decision• Opinion by Chief Justice Roberts, with Justices Kennedy,

Alito, and Kagan fully joining

• Justices Thomas and Gorsuch join the opinion, except for footnote 3o Justice Thomas didn’t like endorsement of Locke even of a “mild kind,” but joined

because it narrowed it

o Justice Gorsuch believes it draws a good line between religious status and religious practice cases and that children’s safety was important enough

• Justice Breyer concurred in the judgment

• Justice Sotomayor dissented with Justice Ginsburg joining

• Footnote 3o “This case involves express discrimination based on religious identity with respect to

playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”

Upcoming Cases• Religious institutions that are acting as health care

providers

• Religious institutions that provide adoption services on

behalf of the state

• Providing of morning after pill by pharmacist with

religious beliefs (Stormans v. Wiesman)

• Prisoner cases (always ongoing)

• Services not being provided based on a moral objectiono Interesting debate between a pastor, a florist, and a janitor.