Establishment Clause and Free Exercise Clause

by   |  05.29.09  |  Current Events, Establishment Clause and Free Exercise Clause, Supplemental Information


1. Israel’s theocracy of the Old Covenant was extinguished by the death of the Messiah, who distinguished between earthly and spiritual kings.

2. “Give to Caesar what is Caesar’s, and to God what is God’s” (Matthew 22:21).

3. Men and women, however, did not let go of their tendency to desire that all earthly and spiritual power accrue to divine-rights, church-state monarchs, reminiscent of Israel’s desire to live under an earthly-spiritual king.

4. The Reformation opened a disruption of divine rights and dictatorial systems but led to more church-states.

5. Rodger Williams of Rhode Island deplored in a 1644 letter a break in the wall between the garden of the church and the wild of the world.

6. The First Amendment reads in part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …” (1792).

7. Thomas Jefferson wrote in 1802 in a letter to the Danbury Baptist Association: … I contemplate … that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exerrcise thereof,’ thus building a wall of separation between church and state….”

8. Justice Hugh Black (1947) cited Jefferson’s wall of separation concept in Everson v. Board of Education, its first use by the U.S. Supreme Court.

9. Justice Stewart (1963) disputed Black’s application of the wall of separation in Engel v. Vitale, which banned a state-composed prayer in public schools. Stewart stressed prayer as a part of the spiritual heritage of the nation.

10. Abington v. Schempp (1963): The court ruled that any law advancing or inhibiting religion exceeds First Amendment permissibility, and the court banned required Bible reading and Lord’s Prayer recitation in public schools

11. Lemon v. Kurtzman (1972) banned state aid to parochial schools for secular subject support and established the Lemon Test: Statute must have secular purpose; its primary effect must concord with the Abington Rule; and it must not foster “excessive government entanglement with religion.”

12. Stone v. Graham (1980) applied Lemon to a Kentucky law that required posting of privately-funded Ten Commandments in public school rooms, noting that the document is “the fundamental legal code of Western Civilization and the common law of the United States.” The court overturned the Kentucky law.

13. Heffron v. International Society (1981) applied a time-place-manner analysis and gave approval to the Minnesota State Fair ban on midway solicitation of funds but approved same behavior in the Hare Krishna booth.

14. Mueller v. Allen (1983) upheld a Minnesota law permitting state income tax deduction of private tuition.

15. Marsh v. Chambers (1983) approved the publicly funded chaplaincy and opening prayers of the Nebraska Legislature, reversing a U.S. Court of Appeals decision that applied Lemon.

16. Lynch v. Donnelly (1984) looked at the Pawtucket, R.I., Christmas display paid for by a nonprofit and placed in a public park: a Santa scene, Christmas tree, a nativity scene and a clown. The court overruled lower courts’ decisions that the nativity scene established religion.

17. Wallace v. Jaffree (1985) invalidated an Alabama law providing for a one-minute period of silence, meditation, voluntary prayer and prescribed teacher-led prayer for willing students.

18. Grand Rapids v. Ball (1985) denied the constitutionality of a program to provide public school teachers for secular subjects at church-related schools.

19. Oregon et al. v. Smith (1990) agreed that Smith and Black, members of the Native American Church, could be fired from their private drug rehabilitation center and denied unemployment benefits because they engaged in sacramental use of banned peyote. Essentially overturned by the Religious Freedom Restoration Act of 1993.

20. Westside Community Schools v. Mergens (1990) ruled the Omaha, Neb., school had established a “limited public forum” under the Equal Access Act and could not deny request to form an after-hours Bible club.

21. Lee v. Weisman (1992) directed public schools to avoid inviting local clergy to lead prayers at graduation ceremonies.

22. Lamb’s Chapel v. Moriches (1993) taught that a public schools cannot deny after-school-hours use of the public property in ways that “favor some viewpoints or ideas at the expense of others.”

23. Church of Lukumi Babalu Aye v. Hialeah (1993) protected animal sacrifice by a church; the ban on animal killing was not consistently applied; stopping animal sacrifice by a church was an impermissible secular objective.

24. Rosenberg v. University of Virginia (1994) upheld the funding from mandatory University of Virginia student fees to Wide Awake Publications, which endorsed Christianity. Once the forum was opened to official student organizations, funding could not be withheld from any organization based on content.

25. Boerne, Texas v. Flores (1997) found Congress had exceeded its authority in passing the Religious Freedom Restoration Act, which sought to require governmental legislative burden on religion to meet “compelling governmental interest” and “least restrictive means” tests.

26. Santa Fe ISD v. Doe (2000) agreed with the 5th U.S. Circuit’s conclusion: SFISD was unconstitutional in permitting a student-selected student to deliver a non-sectarian, non-proselytizing prayer over the public address system at football games.

27. Good News Club v. Milford Central (2001) ruled that a school district ban from after-school use of facilities by the club, which met to sing, hear a Bible lesson and memorize scripture, was viewpoint discrimination, impermissible in a “limited public forum.”

28. Watchtower Society v. Stratton (2002) told cities, 8-1, they could not require a religious group to secure a permit before doing door-to-door calling.

29. Simmons-Harris v. Zelman (2002) teaches, 5-4, that the Establishment Clause permits a state to authorize parents to use tax-funded scholarships, or vouchers, at private schools.

30. Locke v. Davey (2004) decided, 7-2, that states can deny state scholarships to students going into ministry.

31. In Van Orden v. Perry and McCreary County v. ACLU (2005), a divided court handed down split decisions upholding some Ten Commandments displays on government property, but not others. In Van Orden, five justices concluded that the overall message of a 40-year-old commandments monument on the grounds of the Texas State Capitol is secular. So it stays. But in McCreary, five justices decided that the commandments display on the wall of the local courthouse was a thinly disguised effort by county officials to promote religion. So it goes.