1. Establishment Clause I (Everson and Abdington)
Lecture 9 Chapter 4
Establishment Clause I
(Everson and Abdington)

2. This Lecture We switch to the Establishment Clause Pages 131-145
Everson
Abdington
Compulsory School prayer

3. The Establishment Clause
The text:
Congress shall make no law respecting an establishment of religion
Three interpretations
Wall of separation (Jefferson Letter)
A wall, but it only means government will not favor one religion over another
Neutrality
The literal meaning
This is a particularly difficult part of constitutional law

4. Bradford v. Roberts (1899) Bradford v. Roberts (1899)
$30,000 in federal money went to build a medical facility owned and operated by the Sisters of Charity, who were Roman Catholic
The Court upholds this appropriation because there was a secular, non-religious purpose
It wasn’t important that it went to a religious group
So money could go to religious institutions if it for a secular reason
The Court wouldn’t hear another establishment case until 1947

5. Everson v. Board of Education (1947)
Background
New Jersey had a law allowed local school boards to transport students to and from school
Even if it was to a private or religious school
Ewing Township, NJ allowed for reimbursement for parents sending children to schools since it had no public schools of its own
This included four Catholic schools
Most parents got about $40 per child
Everson challenges this as a taxpayer of the township

6. Everson v. Board of Education- II
Arguments
For Everson
The Establishment Clause should be incorporated against states/localities
This was allowing public money to go for a religious purpose
For Board of Education of Ewing Township
Cochran v. Board of Education (1930) allowed for textbooks to be paid for all children, even if in religious schools
This is part of the state’s police powers
This does not aid a religious institution, but goes to parents

7. Everson v. Board of Education- III
Justice Black rules for a 5-4 Court
He tries to look at the meaning of the language in the First Amendment
Madison wrote that no one should be taxed to support a religious institution of any kind
Means at least:
Government cannot set up a church
Cannot pass laws to aid one religion, aid all religions or favor one over another
Cannot force one to believe or profess a belief against their faith
No person can be punished for professing their belief or disbelief
No tax, however small can go to a religious institution
Government cannot participate in church activity
These add up to a “wall of separation between Church and State”

8. Everson v. Board of Education- IV
More from Black, J.
However, despite this language, the statute is upheld
He finds that this was equally applicable to all parents in the district
The State may not aid religion, but may not handicap it either
This money only goes to parents for transportation, not the religious schools
The aid program had a secular purpose
This case also incorporates the Establishment Clause against the states/localities

9. Everson v. Board of Education- V
Dissents
Jackson, J. joined by Frankfurter
He agrees with the reasoning but not the results
Says this is making a religious institution at business
Rutledge, J. joined by Frankfurter, Jackson and Burton
He quotes the Virginia religious freedom statute
He says it argued for a complete separation
This forbids any public aid or support for religion
He feels this ends up aiding religious teaching and training
Again, this dissent agrees with the approach, just not the direction the majority took it

10. Board of Education v. Allen (1968)
New York had a statute that provided free textbooks to all school children grades 7-12, including private ones
The majority ruled for the state, saying that the purpose was secular education
Black, Douglas, and Fortas dissented
They said the textbooks go to the heart of education within a parochial school, while transportation did not
Advocacy groups
Page 138, Box 4-3
Blaine Amendments

11. Engel v. Vitale (1962) Engel v. Vitale (1962)
Challenge to a New York law requiring teachers to recite a prayer written by the school board of regents
Children did not have to participate they could sit silently or leave the room
The NYCLU challenged the state had written the prayer
Black writes for the majority
No business of government to compose official prayers for any group or to recite them
Stewart thought it was rather innocuous

12. School District of Abdington Township v. Schempp (1963)
Background
Challenge to reading from the Bible and reciting the Lord’s Prayer in public schools
Children could leave the room, but could miss other announcements or be labeled badly
Bible reading was much more prevalent than what was in Engel v. Vitale
The plaintiffs were Unitarians that did not agree with this
One of their children used their time to read from the Koran rather than the Protestant Bible, so they were suspended
The ACLU takes on the case, and it continued beyond graduation
They argued this favored some religions over others
The Murray case was similar, but brought by atheists

13. School District of Abdington Township v. Schempp- II
Arguments
For Abdington School District
This was done in a secular manner and not for proselyting, indoctrination, or instruction
Participation is voluntary
Practice is neutral
For the Schempps
Bible reading is a devotional or religions act
Preference is given to Christianity
It is mandatory
Violates free exercise by making those with other religious views to excuse themselves

14. School District of Abdington Township v. Schempp- III
Justice Clark rules for an 8-1 majority
Ends up setting up a test for lower courts to follow
1) What are the purpose and primary effect of the enactment
2) If either the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution
So in easier terms
1) Secular purpose requirement
2) Primary effect is neutral

15. School District of Abdington Township v. Schempp- IV
Clark, J.
In application:
These practices are religious in character
No mitigation in allowing students to leave the room
These are not minor violations
The decision does not create a “religion of secularism”
Bible reading would be allowed if not devotional
The free exercise clause cannot be used as a mechanism for the majority to use the machinery of the state to practice its beliefs

16. School District of Abdington Township v. Schempp- V
Concurrences
Douglas, J.
Public funds were essentially being used to promote religion
Brennan, J.
Not every involvement of religion in public life is unconstitutional
Goldberg, J. joined by Harlan, J.
Further agreement

17. School District of Abdington Township v. Schempp- VI
The Stewart dissent
He is again out on the limb by himself
He sees the key issue as one of coercion

18. Reaction to Vitale and Abdington
Public opinion very much against at the time
Much of the South simply ignored the cases
Was part of the issues that helped to create the modern “religious right”
We will come back to school prayer a bit later

19. Next lecture Next lecture Pages 145-159 The Lemon Test
Aid to religious schools