Freedom of Religion Stephanow 2007

Church-State Relationships in America ARTICLE VI “…no religious test shall ever be required as a qualification to any office or public trust under the United States.”

Church-State Relationships in America 1 ST AMENDMENT “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably to assemble, and to petition the Government for a redress of grievances.”

The 1 st Amendment has been incorporated by the 14 th Amendment “…nor shall any State deprive any person of life, Liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Incorporation means that the Supreme Court has said that the 1 st Amendment also applies to state and local laws, and activities.

Questions about FOR Why was religion placed first of all rights in the Bill of Rights? What did Thomas Jefferson mean when he said, “a wall of separation between church and state?” Why were there so few cases dealing with religion between 1791 & 1940?

How has the Supreme Court interpreted religion cases?

Establishment Clause Cases: Prayer in Public Schools Engel v. Vitale (1962) Can you have organized prayer in public schools, even if it’s voluntary and nondenominational? Abington v. Schempp (1963) Can you read the Bible in public school during class time? Can you say the Lord’s Prayer? Wallace v. Jafree (1985) Can you have a “moment of silence” in public school? The Croft Family from Texas is challenging the TX law.

Establishment Clause Cases: Aid to Parochial Schools Lemon v. Kurtzman (1971) Set up a 3-part test The secular purpose test—does the law have a secular purpose? What is the intent of the legislation? The primary effect test—Does the law either advance or hinder religion? The excessive entanglement test—does the law/program promote a high degree of interaction between religion and civil authorities? Lemon-aid

Establishment Clause Cases: Aid to Parochial Schools

Display of other religious symbols Van Orden v. Perry (2005) Does a 10 Commandments monument on the grounds of a state capitol building, violate the Establishment Clause, which bars the government from passing laws “respecting an establishment of religion?”

More school issues… Santa Fe v. Doe (2000) Does the Santa Fe Independent School District's policy permitting student-led, student-initiated prayer at football games violate the Establishment Clause of the First Amendment? Yes. (6-3) Violates the Establishment Clause. They said that the football game prayers were public speech authorized by a government policy and taking place on government property at government-sponsored school-related events and that the District's policy involved both perceived and actual government endorsement of the delivery of prayer at important school events. Such speech is not properly characterized as "private," wrote Justice Stevens for the majority. In dissent, Justices noted the "disturbing" tone of the Court's opinion that "bristle[d] with hostility to all things religious in public life."

More school issues… Lee v. Weisman (1992) Can you have a prayer at graduation, given by a clergyman? Jones v. Clear Creek ISD (1995) Can students initiate and give the prayer at graduation? “Clear Creek Prayer Policy” The senior class would take a vote to see if a majority wanted a prayer at graduation or not. If the majority did want a prayer, the students would then select the student(s) to say the prayer(s) from a list of volunteers. Administration was not allowed to participate in the vote other than to “advise.” Admin. could look at prayer only to make sure that is was nonsectarian, nondenominational, and nonprothelytizing.

More school issues… 5 th circuit said student initiated and led is OKAY. 3 rd circuit said it was NOT okay. 11 the circuit said is was OKAY. Fed. Dist. Ct. in VA ruled is was NOT okay. Why won’t the SCt take a case and decide it for good? Some legal scholars believe it was decided in the Santa Fe case. Federal Guidance Letter to Superintendents (2003)

So what about prayer at graduation at CWHS? We should follow the 5 th Circuit ruling. This will be our first year to deal with this issue.

Religious School Clubs Westside v. Mergens (1990) Equal Access Act allows religious groups on public school campuses, if that campus allows other clubs/organizations.

Evolution v. Creationism or Intelligent Design Scopes Monkey Trial (1920’s) Schools were to teach creationism —not Darwinism. Since—the Courts have ruled the opposite. There cannot be state laws forbidding the teaching of evolution and requiring the teaching of creationism. Courts usually don’t even want creationism or ID taught at all.

Pledge Cases Elk Grove v. Newdow (2005) Do the words “one nation under God” violate the establishment clause? Is it a government endorsement of religion? Croft v. Perry (2007) Do the words “one state under God” added to the Texas Pledge, violate the establishment and free exercise clause? “…the Court DENIES Plaintiffs’ motion because Plaintiffs have failed to show they will suffer irreparable injury if the injunction is not granted.” 8/28/07 U.S. District Court for the Northern District of Texas

FREE EXERCISE CLAUSE You are free to exercise any religion you want; or no religion at all… but there are limits.

You cannot do anything that might harm yourself or violate the rights of others. Cannot do anything that would violate the law.

Another 3-part test: Has the government imposed a burden on the free exercise of the plaintiff’s religion? Does the religion demand the kind of behavior in question and, Is the plaintiff engaged in good faith in that religion? Does a compelling state interest justify the burden placed on the exercise of religion? State’s interest must be of the greatest importance to take precedence over the plaintiff. Does the state have an alternative way of achieving its goals rather than infringing on the free exercise of the individual’s religion?

New Texas law: Religious Viewpoints Anti-Disc. Act The bill requires that school districts adopt and implement a policy establishing a limited public forum for student speakers at school events, and ensures other protections for students expressing their religious viewpoint.

Saluting the Flag Cases West Virginia v. Barnette (1943) Can the state force a student to salute the flag?

Other Free Exercise Issues: Polygamy Child vaccination Snake handling (picture!) Parade permits for religious groups Military Service (conscientious objector) Ministers and public office Days off of work for religious holidays

Snake handling at the Pentecostal Church of God, Lejunior, Harlan County, Kentucky 09/15/1946 (National Archives and Records Administration). The ceremony also included laying on of hands. Photo by Russell Lee.

Other Free Exercise Issues: Deny unemployment for being fired for smoking peyote? (next slide!) Religious group sacrifice animals? Force Amish children to attend school beyond the 8 th grade?

Peyote—Native American Church “Notwithstanding any other provision of law, the use, possession, or transportation of peyote by an Indian for bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or any State. No Indian shall be penalized or discriminated against on the basis of such use, possession or transportation, including, but not limited to, denial of otherwise applicable benefits under public assistance programs.” AMERICAN INDIAN RELIGIOUS FREEDOM ACT, AMENDMENTS OF

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