Church and State

Church and State EDEA 630 Chapter 5 notes Wall of Separation Thomas Jefferson first called for a “wall of separation” between church and state. This doctrine first appeared in Reynolds v. the United States in 1879. The current Supreme Court has disputed this concept, calling it a “metaphor based on bad history”. The First 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 peaceably to assemble, and to petition the Government for redress of grievances. A Brief History The Establishment and Free Exercise clauses of the First Amendment were created in part because of the early religious history in the colonies. Although escape from religious intolerance led to the founding of the American colonies, there was considerable intolerance among various groups once the colonists settled here. Religious Assessments In 1779, a bill was introduced into the Virginia Legislature calling for assessments (taxes) to support the practice of Christianity. Thomas Jefferson and James Madison strongly opposed such taxes. For Discussion President Bush initiated a Faith-based Initiative Bill that provides tax monies to religious organizations that engage in social and charitable work. How do you think Jefferson and Madison would view these initiatives? What do you think are the advantages and disadvantages? The Public School and Religion • Education is to benefit the entire society and the legislature has the power to tax all for support • Public education must be secular, however non-secular education can be supplemented with public funds • The state can compel all parents to provide their children with a minimum secular education Public Taxation for Religious Schools • The “child benefit” concept has been applied to the use of public funds to support private schools. Two early cases were: • Cochran v. Louisiana State Bd. of Ed. (This was tested under the 14th Amendment) • Everson v. Board of Education The Lemon Test The 1968 decision in Board of Education of Central School District No. 1 v. Allen led to much controversy about the wall of separation concept. Note Justice Black’s dissent to that opinion on p. 167 of our text. This influenced the 1971 decision, Lemon v. Kurtzman, which drew the line between public and private funding with a three-pronged test. The Three Prongs of the Lemon Test • 1. The statute must have a secular legislative purpose • 2. Its principle or primary effect must be one that neither advances nor prohibits religion • 3. It must not foster excessive entanglement with religion Lemon Test Crumbles • Several cases have led to the demise of the Lemon Test in the past two decades: – Zobrest v. Catalina Foothills – Agostini v. Felton – Mitchell v. Helms Aguilar v. Felton This 1985 case portended the beginning of the end for the Lemon Test, ruling that Title I funds could not be used within parochial schools. As the Supreme Court membership changed in the late 1980s and early 1990s under the Reagan/Bush administrations, the Court returned to a more liberal application of the child benefit clause. Zobrest v. Catalina Foothills • This 1993 Supreme Court case found that providing special education (IDEA) services to students in parochial schools did not violate the Establishment Clause of the Constitution. Agostini v. Felton This 1997 case virtually overturned Aguilar. Although Justice O’Connor rendered the opinion, it reflected Justice’s Scalia’s opinion: “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 little children…” Mitchell v. Helms • This 2000 case found that providing funds to schools through Chapter 2 monies (for instructional and educational materials) to sectarian schools was not a violation of the Establishment Clause of the Constitution. Theories of Church and State • Strict separation • Non-preferential subsidization • Non-coercive subsidization Strict Separation • This is the “highest wall” theory, in the shadows of Jefferson and Madison. It basically maintains that strict separation of church and state protects the individual’s liberty and freedom of conscience and free exercise of religion. It is not the operating theory of the current Supreme Court. Non-preferential Subsidization • Also called the “neutrality” theory, this holds that the government can neither endorse nor oppose the support of a particular religion. In other words, whether or not a school has a religious perspective shouldn’t affect its ability to receive Federal categorical funding. Non-coercive Subsidization • In this theory, “the state effectively embraces, funds, obliges, and accommodates religion’s presence in government.” This theory is gaining support under the current Supreme Court. In other words, the government may actively support religious activities as long as it doesn’t force anyone to participate. Vouchers • In 2002, the Supreme Court ruled in the Zelman v. Simmons case that an Ohio law permitting parents of parochial school children to use tax vouchers for tuition did not violate the Establishment clause of the Constitution. They found the program to be neutral because it offered a spectrum of services to children in both public and private schools. Vouchers • The Zelman ruling basically left the issues of vouchers up to the state. The trend lately is for states to turn down voucher laws, generally by a two to one margin. The most recent state to turn down a referendum for vouchers was Florida. Establishment in Hawaii • The Hawaii Supreme Court uses the strict separation theory in education funding. In the 1968 case, Spears v. Honda, the Court issued an opinion strongly supporting the wall of separation between church and state. Released Time for Religious Instruction • The courts have found releasing students for religious instruction that takes place on school grounds unconstitutional. • (Illinois ex. rel. McCollum v. SC 71) • Releasing students to attend school off school grounds is constitutional, however. • (Zorach v. Clauson) Prayer and Bible Reading The Supreme Court has adopted a bifurcated standard on this issue, banning formal prayer and Bible reading (Weisman and Santa Fe) while allowing public funds to be spent in religious schools (Mueller, Zobrest, Agostini, Helms). Silent Meditation In 1985, the Court held in Wallace v. Jaffree that mandating by law a formal period of prayer or silent meditation was unconstitutional because it violated the neutrality theory. They found it to be an endorsement of religion if children (or school districts) didn’t have a choice not to participate. Prayer Prayer in schools must be spontaneous, student-initiated and purely voluntary. This applies at ceremonies and extracurricular events as well. (Schempp,Weisman, Santa Fe) The Equal Access Act This law was enacted in 1984 after, in Widmar v. Vincent, the Supreme Court ruled that students’ use of public university facilities for religious activities was allowable if students were also allowed to use facilities for other purposes. Equal Access Act Congress passed this law to apply the Widmar decision to extracurricular activities in public schools. The Act stipulates that if a public secondary school allows extracurricular clubs to meet for any purpose, it has established a “limited open forum”. Equal Access Act When a school has established a limited open forum, it must let students meet for any purpose, except those that are illegal. Appendix B, p. 1023 of the text has a copy of the Equal Access Act. Facilities If school districts allow their facilities to be used for any public purpose, they cannot deny the use to religious groups solely on the basis of the religious nature of the group. (Lamb’s Chapel) Board of Ed. Westside v. Mergens • This case challenged the constitutionality of the Equal Access Act and in 1990, the Supreme Court upheld it. The Court ruled that students attending secondary schools where there is a limited public forum have a right to organize their own groups, regardless of the political, religious, or philosophical perspective. Facilities A school or school district may establish guidelines, including fees, for allowing the public use of facilities. (The DOE has a policy about this.) Flag Salute In West Virginia State Board of Education v. Barnette, 1943, the Supreme Court ruled that forcing students to salute the flag is unconstitutional.