2. Establishment Clause Jurisprudence
• The Court's decisions here tend to be the
most controversial and the most and
inconsistent in terms of legal reasoning.
• A few important cases in the 1940's but
most establishment clause cases came to the
court starting in the 1960's to date.
3. Underlying judicial reasoning
• 1. to avoid denominational hostilities
among a heterogeneous population.
• 2. a concern with religion staying private
and personal.
• 3. respect for feelings of the few who may
be ostracized because of unconventional
religious beliefs.
4. Wall of separation between
Church and State
• What does this phrase mean? That is:
• How did Jefferson mean it in the famous 1802
letter to the Danbury Baptists?
• How did other framers understand the
establishment clause?
5. Wall of separation between
Church and State
• What does this phrase mean?
• Separatist: a solid wall of separation between
religion and government (church & state).
• Accommodationist (2 versions):
• Nondiscriminatory support or aid of all religions
constitutionally permissible.
• Establishment Clause only bars the adoption of an
official national religion.
6. Original intent of framers
• Many studies have shown that the framers
disagreed on the meaning of establishment, but the
majority likely agreed with an accommodationist
position, as the text notes (p. 145).
• Yet those who were most influential in drafting
the 1st Amendment – Jefferson & Madison – were
separatists.
• Therefore, it is difficult to use the intent of the
framers as a guideline.
7. Two perspectives on establishment
framers’ intent
• Non-preferentialist – consistent with the
accommodationist position
• Preferentialist – consistent with the
separatist position.
8. Non-preferentialists
• Non-preferentialists argue that the framers did not
intend to end government support of religion, only
support that gives preference to one denomination
over another.
• They argue that many court rulings instead of
being neutral to religion, have been hostile, with
government favoring non-religion over religion.
To be neutral, government should support
religious activities the same as it supports
nonreligious.
9. Non-preferentialists
• In addition, they believe the framers intended for
the 1st Amendment only to bar the establishment
of a national church. Federal action that benefits
several religions is permissible.
• They argue that the framers saw religion as
important to government, because it instills
important civic values like honesty. You can see
this reasoning in the dissent of Justices Burger and
Rehnquist in Wallace v. Jaffree.
10. Preferentialists
• Preferentialists argue that – at the time of the
framing of the 1st Amendment, state governments
already were rejecting formal church
establishment, but most still provided aid to
churches on a non-preferential basis. This was the
status quo situation that the framers intended to
restrict. Otherwise, there would have been no need
to add this provision in the Bill of Rights.
• They believe that government should be neutral
between religion and non-religion.
11. Preferentialists
• Appears to have been Madison’s view, both
while he was in Virginia and later in the
White House. Like Jefferson, he opposed
setting up a national holiday to thank God
(Thanksgiving) and the appointment of
chaplains for Congress and the military, on
the grounds that they violated the
establishment clause.
13. Everson v. Board of Education
(1947)
• Facts of the case:
• A New Jersey law permitted local school boards to
cover transportation costs for children attending
either public or private nonprofit schools. One
town reimbursed parents for transportation costs
to its four Catholic schools. Taxpayer Arch
Everson filed a suit against the board of education,
challenging this as a violation of the establishment
clause.
15. Everson v. Board of Education
(1947)
• Court ruling: 5/4 not a violation.
• Court reasoning: authored by Justice Black.
16. Everson v. Board of Education
(1947)
• Court reasoning: The establishment clause means
government can’t set up a church, pass laws to aid
one religion or all religions, give preference to a
religion, levy a tax, compel church attendance, etc.
“In the words of Jefferson, the clause was
intended to erect a wall of separation between
church and State.... that must be kept high and
impregnable.” In this case, he ruled, the wall had
not been breached. The program was general and
benefited children. Black drew a parallel with
police and firemen providing services.
18. Everson v. Board of Education
(1947)
• Dissent (Jackson): Majority ignores how key
education is to the Catholic faith. This aid is the
same as if given directly to the Church. Program
is not neutral because it covers only public or
private Catholic schools (not private secular or
other religion). The analogy about firemen and
police is flawed. The true analogy is if “the police
shall protect pupils on the way to or from public
schools and Catholic schools but not while going
to or coming from other schools.” The tax benefit
essentially sets up a religious test.
19. Everson v. Board of Education
(1947)
• Dissent (Rutledge): “Any law respecting an
establishment of religion is forbidden.” The 1st
amendment requires “a complete and permanent
separation of the spheres of religious activity and
civil authority.” Free exercise & establishment
clauses correlate, and any government tax support
interferes with individual free exercise. These
funds raised by taxation & used to encourage
religious instruction.
20. Everson ruling outcomes
• Applied the Establishment Clause to the states
through the 14th amendment.
• Stressed certain core ideas: wall of separation in
general, but Court would consider if purpose of
the aid is secular; beneficiaries are children, not
religious institutions; & state is neutral in relations
between believers and non-believers.
• Illustrated how controversial this area would
become (text, pp. 151-152).
21. Everson test & different rulings
• Court sent mixed signals after Everson.
• Table 4-1: In the seven establishment clause
cases from 1947 to 1968, half reflected an
accommodationist view and half a separatist
view.
• Emerging test articulated in Abington
Township v. Schempp (1963)
22. Emerging test in Abington Township
• Two questions:
• What is the purpose of the law?
• What is the primary effect of the law?
To be constitutional, it must have a secular
legislative purpose and neither advance nor
inhibit religion.
23. Emerging test after Walz v. Tax
Commission of NYC (1970)
• The Burger Court’s first establishment case upheld
a state property tax exemption for religious
institutions against a taxpayer challenge. Burger
introduced a third question: was there an excessive
government entanglement with religion? In this
case, the entanglement greater if no tax exemption.
The exemption reinforced the separation between
government and religion.
25. Lemon v. Kurtzman/Earley v.
DiCenso (1971)
• Facts of the case: Pennsylvania state law
reimbursed nonpublic schools for teaching
salaries, books and secular instructional materials
for courses in math, language and physical
education. Lawsuit filed by Alton Lemon, a
taxpayer and father of a child in public school.
• Rhode Island supplemented the salary of
nonpublic school teachers who agreed not to teach
religious subjects. It turned out that all worked at
Catholic schools. Program challenged by the
American Jewish Congress.
26. Lemon v. Kurtzman/Earley v.
DiCenso (1971)
• Court ruling: 8-0; 8-1 to strike down the
laws.
• Court reasoning:
27. Lemon v. Kurtzman/Earley v.
DiCenso (1971)
• Court reasoning: Burger brought together the three
criteria in earlier cases to create the Lemon test:
• 1. the statute must have a secular legislative
purpose.
• 2. its primary effect must be one that neither
advances nor inhibits religion.
• 3. it must not foster “an excessive government
entanglement with religion.”
• Where did these statutes fail this test?
28. Lemon v. Kurtzman/Earley v.
DiCenso (1971)
• First prong - secular legislative intent – fine.
• Second prong - primary effect – unclear
• Third prong – excessive government entanglement –
clearly fails. To monitor compliance, government has to be
continuously involved in examining church records &
surveilling teachers. Further, in Pennsylvania, the funds
go directly to the schools, not the teachers or parents.
• A broader entanglement also arises, because of the
“divisive political potential of these state programs.”
Could result in political campaigns based on people's
religious faith.
29. Lemon v. Kurtzman/Earley v.
DiCenso (1971)
• Concurrence (Douglas): Tax payer funds
cannot be used even for the secular portion
of a parochial school, because a school is a
single organism operating under one
budget. Public subsidies of secular
activities frees up funds for those schools to
use for religious instruction.
30. Lemon v. Kurtzman/Earley v.
DiCenso (1971)
• Dissent in DiCenso (White): the plaintiffs
provided no evidence that non-secular
lessons were taught in secular classrooms in
religious schools. He argued that the 1 st
amendment permits state funds to
supplement salaries of teachers of secular
subjects.
31. Cases in the 1980s & early 1990s
• Aguilar v. Felton (1985)
• Zobrest v. Catalina Foothills School
District (1993)
• Board of Education of Kiryas Joel Village
v. Grumet (1994)
