ESTABLISHMENT OF RELIGION

1. ESTABLISHMENT OF RELIGION 4/07/09

2. Teaching Evolution • What is evolution? • Why are certain religious groups opposed to teaching evolution in the public schools?

3. Scopes “Monkey” Trial (1925) • See Box 4-5 E&W p. 178 • Scopes was high school teacher charged with violating Tenn. law prohibiting the teaching of evolution in public schools. • “Trial of the century” covered by NY Times and all the major papers of the day. • Featured battle of two of the most famous lawyers of the times: Clarence Darrow and William Jennings Bryan (3 time unsuccessful candidate for President). • Rural Tenn jury convicted Scopes and judge fined him $100. • Trial became the basis for a stage play and then a movie called “Inherit the Wind.” • Excellent book: Summer for the Gods by Edward Larson

4. Epperson v. Arkansas Bd. of Ed. (1968) FACTS: Arkansas had a state law prohibiting the teaching of evolution in public schools. • What was the holding? • What was the rationale for the Court’s decision?

5. Epperson v. Arkansas Bd. of Ed. (1968) • HOLDING: It is a violation of the establishment clause of the 1st amendment (as applied to the states through the 14th) for a state to prohibit the teaching of evolution in the public schools. • REASONING: No valid secular purpose.

6. Teaching Creation Science • Following the Epperson decision, leaders from “Christian Right” groups like the Jerry Falwell’s Moral Majority started a movement to get state legislatures and school boards to require schools to also teach “Creation Science.” • What is "Creation Science“? • Why would anyone be opposed to requirements that schools that teach evolution, also have to teach creation science?

7. Teaching Creation Science • "Creation Science“ is the view the earth and the creatures that inhabit it were created by God in the manner in which it is described in the Bible. • Creation in seven 24 hour days • Worldwide flood and Noah’s Ark • People oppose teaching “creation science” in schools because “creation science” is religion rather than real science. ------------------------------------------------------------------------ • What is the difference between science and religion? • What does it mean when we call something a theory?

8. Edwards v. Aguillard(1987) FACTS: Louisiana passed law requiring that if a school chooses to teach evolution, it must also teach "creation science.” • What was the holding? • What was the rationale for the Court’s decision?

9. Edwards v. Aguillard(1987) HOLDING: It is a violation of the establishment clause of the 1st amendment (as applied to the states through the 14th) for a state to require the teaching of "creation science" in the public schools whenever evolution is taught when the motivation behind the act is to further a religious viewpoint. REASONING: The legislative history of these “equal time” policies showed that they lacked a secular purpose because they were religiously motivated rather than coming from established scientific educators.

10. Aid to Religious Schools • See Table 4-2 on pp. 157-158 in E&W for listing of key "parochiade" cases. • Pay special attention to which types of aid were approved and which were rejected and the test that was applied.

11. Everson v. Bd. of Education (1947) FACTS: Challenge to a plan to reimburse parents of children who attend religious schools for the costs of transporting their children to school as long as parents of public school children receive the same benefits. • What was the holding? • What was the rationale for the Court’s decision?

12. Everson v. Bd. of Education (1947) HOLDING: It is a not a violation of the first amendment establishment clause (made applicable to the states by 14th amendment due process clause) for a public school district to reimburse parents of children who attend religious schools for the costs of transporting their children to school as long as parents of public school children receive the same benefits. REASONING: • Secular purpose to directly benefit children • Neutrality: Equal benefits regardless of type of school attended.

13. Lemon v. Kurtzman (1971) HOLDING: It is a violation of the 1st amendment establishment clause, as applied to the states through the 14th amendment due process clause, for a state to reimburse religiously affiliated schools for teachers salaries, textbooks, and other instructional materials. REASONING: Practices created excessive government entanglements. • Gov. had obligation to monitor teachers and book selection to be sure they were not involved in “inculcating religious doctrine.” • Gov. couldn’t do this monitoring without creating excessive entanglements.

14. Meek v. Pittenger (1975) • Court upheld program where state purchased secular text books and then loaned them to students to use in religious schools. • Distinguished from Lemon v. Kurtzman on the basis that since government was selecting books they were able to avoid religious influence without having to oversee operation of the religious schools.

15. Agostini v. Felton (1997) • Illustrates the impact of new more conservative justices on the S. Ct. • The S. Ct. upheld the constitutionality of program where New York City public school system used its own employees to provide special education services from vans parked in the parking lots of religiously affiliated schools to students who needed those services in those schools. • While not overruling Lemon, the softened its impact by finding that while the program involved some “entanglements,” they were not “excessive.”

16. Mitchell v. Helms (2000) FACTS: Challenge to “Chapter 2” program in which Jefferson Parish Louisiana school officials were lending educational equipment and materials to religiously affiliated schools. HOLDING: It is not a violation of the establishment clause of the 1st amendment to lend educational materials and equipment purchased with federal funds to religiously affiliated schools when the allocations are made on the basis of enrollment. REASONING: It is acceptable if the teachers to use equipment and texts payed for by taxpayers as long as • the government wasn’t involved in determining the content of what they taught and • the government aid was not given out on the basis of the recipient’s religious views.

17. Tax Credits & Vouchers KEY CASES • Mueller v. Allen (1983) • Zelman v. Simmons-Harris (2002) ----------------------------------------------------------- • What is the difference between tax credits and vouchers? • What are the arguments for and against using them to support religiously affiliated schools?

18. Arguments for School Tax Credit & Vouchers POLICY • They will improve the quality of education by introducing competition. CONSTITUTIONAL • They are constitutional because they go directly to parents and it’s the parents rather than the state that decides where they should be used.

19. Arguments Against School Vouchers POLICY: • They will decrease rather than increase quality of schools because: • They remove valuable resources from the public schools. • Public schools will end up as dumping ground for special education children and those with conduct problems. CONSTITUTIONAL • They violate establishment clause because they end up being used to support religious education.

20. Mueller v. Allen (1983) Upheld state programs that gave parents tax deductions for money spent on tuition, textbooks and transportation to private schools (including religiously affiliated ones).

21. Zelman v. Simmons-Harris (2002) FACTS: • Challenge to constitutionality of a pilot school voucher program in Cleveland, Ohio. • Tuition aid was distributed to parents on the basis of financial need and parents could spend it at the school of their choice from among a list of approved schools. • 82% of the approved schools were religiously affiliated. 96% of participating students enrolled in these religiously affiliated schools. • What was the holding? • What was the rationale for the Court’s decision?

22. Zelman v. Simmons-Harris (2002) HOLDING: It is not a violation of the establishment clause of the first amendment (as applied to the states through the 14th amendment) for state to fund school voucher program that allowed parents to use taxpayer money for tuition at religiously affiliated private schools as long as it doesn’t favor religious schools over non-religious ones and it leaves the selection of the school in the hands of the parents.

23. Zelman v. Simmons-Harris (2002) REASONING: Valid secular purpose was providing educational assistance to poor children in demonstrably failing public school system. It was neutral toward religion because vouchers were given to parents without respect to their religion. Government not perceived as endorsing religion. Advancement of a religious was “incidental.”

24. Other Publicly Supported Religious Activities KEY CASES: • McGowan v. Maryland (1961) • Stone v. Graham (1980) • Marsh v. Chambers (1983) • Lynch v. Donnelly (1984) • County of Allegheny v. ACLU (1989) • Capitol Square Review and Advisory Bd. v. Pinette (1995) • McCeary County v. ACLU (2005) • VanOrden v. Perry (2005) • Pleasant City v. Summum (2009)

25. McGowan v. Maryland (1961)Not covered in text FACTS: Challenge to Sunday Closing Laws HOLDING: It is not a violation of the establishment clause of the 1st amendment as it is applied to the states through the 14th, for a state to prohibit the production, sale of selected types of merchandise on Sundays. REASONING: Court found valid secular purpose in creating day on which parents wouldn’t have to work so families could be together.

26. Marsh v. Chambers (1983) FACTS: • Challenge to having paid clergyman as official Chaplain in state legislature. • What was the holding? • What was the rationale for the Court’s decision?

27. Marsh v. Chambers (1983) PRECEDENT: • It is a not a violation of the first amendment establishment clause (made applicable to the states by 14th amendment due process clause) for a state to use public funds to pay a clergyman to open each session of the legislature with a prayer, even when that clergymen is always from the same denomination.

28. Marsh v. Chambers (1983) REASONING: • Majority ignores Lemon test entirely and relies on historical intent and fact that Congress had chaplain at time first amendment was adopted. • Majority also emphasizes that these prayers are • ceremonial rather than proselytizing. • legislators aren't as likely to be influenced by them as school children would be.

29. Lynch v. Donnelly (1984) HOLDING: • It is not a violation of the establishment clause of the 1st amendment (as applied to the states through the 14th) to include a creche as part of a larger Christmas time display in a public park that included Santa Claus, candy canes, decorated evergreen trees, etc.

30. County of Allegheny v. ACLU (1989) FACTS: Challenge to various Christmas displays on public property. HOLDING: • It is a violation of the establishment clause of the 1st amendment (as applied to the states through the 14th) to display a crecheby itself in a prominent place in a public building. • It is not a violation of the establishment clause of the 1st amendment (as applied to the states through the 14th) to display on public property a menorah and Christmas treealong with a sign about saluting liberty

31. Capitol Square Review and Advisory Bd. v. Pinette (1995) • FACTS: KKK filed suit after its request to display a cross in Capital Square at the Statehouse Plaza was rejected by the Advisory Bd. • PRECEDENT: It is not a violation of the establishment clause of the 1st amendment (as applied to the states by the 14th amendment due process clause) for a private group to display a cross on public property that is used as a public forum.