Free Establishment Clause Forming, supporting, endorsing a faith “Congress shall make no law respecting an establishment of religion”

Everson v. Board of Education (1947) Principle: tax dollars spent towards busing students to PAROCHIAL school is CONSTITUTIONAL – because it’s about safety and not promoting religion.

Lemon v Kurtzman (1971) PA law in question allowed tax dollars to be used to help pay the salaries, buy textbooks, and reimburse other teaching materials at parochial schools. Established the LEMON Test – see next 3 slides RULING: UNCONSTITUTIONAL – failed the 3rd test because salaries of teachers couldn’t be managed in such a way to ensure that teachers never promoted religion: excessive entanglement.

LEMON TEST Must be SECULAR purpose Effect of aid/$$ doesn’t promote or restrict a religion Avoid “excessive entanglement of government with religion”

Image from Magruder’s 2013 text

Scenario Can a parochial school receive government money (tax dollars)to buy computers for student use? What are the Issues? What Precedent cases? What’s the ruling Mitchell v. Helms (2000): neutral aid=OK! Though similar to the Lemon v Kurtzman case, computers were deemed essential to part of modern learning. Even if computers can be used to research about a specific religion, they can also be used for secular purposes. If secular textbooks are covered ((Muller v Allen 1982) then so should computers. Note – this wasn’t trying to provide 1-1 laptops but outfitting a computer lab.

Free Exercise Cases Personal practice of faith “Congress shall make no law… prohibiting the free exercise thereof”

Reynolds v. USA (1879) Principle: if the practice of your faith VIOLATES a federal law, your practice must stop. [Gov’t wins!]

Gobitis (1940) & Barnette (1943) Gobitis Principle: if intent of law is secular and important (patriotism), then Faith needs to yield. [Gov wins!] Barnette: if the intent of the law (secular and important) can be met another way; then law must yield. [Faith wins!] Notes – this is a great example of how a SCOTUS decision can be undone (overturned or reversed)

Wisconsin v. Yoder (1972) Principle: if the practice of your faith MEETS the INTENT of the law, then the LAW must change [win for Faith!]

Scenario It is illegal to smoke marijuana in Mississipi. A man was FIRED from his job because he failed a drug test. He said he was had smoked marijuana as a part of his worship service. What issues are involved? What precedent cases can be used? What will the ruling be? Most likely: Firing was UNCONSTITUTIONAL – need to look at the history of the group (Gonzales v,. O Centro Espirita 200^)

Free Speech

Tinker v Des Moines (1969) Principle: Symbolic speech is protected speech too; students have rights too

TX v Johnson (1989) & US v. Eichman (1990) Johnson ruling: flag burning is offensive but it’s still symbolic speech and protected. Flag Protection Act of 1989 – UNCONSTITUIONAL. A law passed by Congress and signed by the President can not undo a Supreme Court Ruling. Must be an Amendment

Not Protected: Fighting Words/Hate Speech Defamatory Speech (slander and libel) Seditious Speech Commercial Speech