Am. Gov't - The Supreme Court

Class, per our discussion on Monday, I would like to re-visit our talk, starting with the 1st Amendment to the Constitution. What do we mean, when addressing the contrasting values of the 1st Amendment? Specifically, what is the tension between the Constitutional protection of religious practice, versus the prohibition of endorsement? How does this tension play itself out in Congress and in the Courts?

First, let us recognize that although the term ‘Separation of Church and State’ is widely used, that this term is not a part of the Constitution. That term was a shorthand used by several of the framers, to explain the relationship of the maturing US Government to religious bodies in the country. The Framers using this term were well acquainted with the possibility of tension between the Free Exercise Clause and the Establishment Clause. And that tension – like that between separate branches of government – would become essential for the protection of liberty, and indeed, for religion.

Let us read the relevant text of the First Amendment:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”.

We must first remember, that when “Congress” is mentioned, we have come to define that term as any government action – such as a City Council or State. Second, we must get to the heart of it. What, in plain English, do these clauses mean? What do we know, first of all? We can be assured that Congress cannot create a “Church of the United States”, and we can be assured that the doors to your Church, Synagogue, or Mosque, will not be nailed shut because of the whim of the Governor, Member of Congress, or the President. With that as our starting point, let us continue.

We addressed two examples – the first, a tax exempt status of a church; the second, the prohibition of the drug peyote by members of a religious group. Reading the First Amendment – where do these regulations fit, understanding that both sets of regulations are allowed.

Let’s dig a bit deeper. As we know, the Supreme Court decides what standards to apply to state action. Currently, the Supreme Court uses a standard based upon a case called Lemon v. Kurtzman, a case involving direct subsidy for religious school. In Lemon, the parent of a child attending a public school sued to prevent the state from spending taxpayer funds to pay for school costs, and to reimburse parochial schools for routine expenses. The Court, in responding to Lemon’s claim (Kurtzman was the Superintendent), settled on the decision that the subsidy was indeed unconstitutional.



Here is the test the Court established for Legislation referencing religion:

1.The government's action must have a legitimate secular purpose;
2. The government's action must not have the primary effect of either advancing or inhibiting religion;
3. The government's action must not result in an "excessive entanglement" with religion

What does that mean, in plain English? What sort of practices and customs can the state allow, or forbid? Consider the following examples of the relevant 1) state action and 2) religious activity in question.

A Seventh-Day Adventist is fired from her job, for refusing to work on Saturdays, and is subsequently denied unemployment benefits (Sherbert v. Verner)

Amish schoolchildren are taken out of school by their parents, in contrast to the state’s requirement of K-12 education (Wisconsin v. Yoder)

A person uses Peyote as part of a traditional religious practice, and is then fired for drug use, and unemployment benefits are denied (Employment Division v. Smith)

A superintendent allows a school prayer before a football game (Doe v. Santa Fe)

A young girl is expelled from school for wearing a Muslim head scarf, in contrast to the school’s ban on hats/headgear in class



In those four instances, religious behavior is ‘entangled’ with regulation. Although the standards evolve – for instance, the ruling in Sherbert was nullified to some degree by Smith, the result for the Plaintiff was the same – the tenor of the Court has been one of a ‘bridge’ between religion and irreligion, so to speak. Each of these cases involved either a monetary interest – Lemon – a state benefit – Sherbert, Smith, or a regulation – Yoder and case the involving the headscarf. But what about an instance where state involvement is less pronounced – such as a reading the Pledge of Allegiance?

Read on. Knowing what we know about the still-enforced Lemon test, please give me a basic outline as to the state action, and the likely response taken by the courts to that action. Once you are finished with that, please Google the case names, and compare your initial reactions to the holdings of the Court. What stands out for you, both as to the nature of the 1st Amendment, but also the changing nature of the Court?