Annotation 3 - First Amendment


 Governmental Encouragement of Religion in Public Schools: Released Time.--Introduction of religious education into the public schools, one of Justice Rutledge's ''great drives,''106 has also occasioned a substantial amount of litigation in the Court. In its first two encounters, the Court voided one program and upheld another, in which the similarities were at least as significant as the differences. Both cases involved ''released time'' programs, the establishing of a period during which pupils in public schools were to be allowed, upon parental request, to receive religious instruction. In the first, the religious classes were conducted during regular school hours in the school building by outside teachers furnished by a religious council representing the various faiths, subject to the approval or supervision of the superintendent of schools. Attendance reports were kept and reported to the school authorities in the same way as for other classes, and pupils not attending the religious instruction classes were required to continue their regular studies. ''The operation of the State's compulsory education system thus assists and is integrated with the program of religious instruction carried on by separate religious sects. Pupils compelled by law to go to school for secular education are released in part from their legal duty upon the condition that they attend the religious classes. This is beyond all question a utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith. And it falls squarely under the ban of the First Amendment. . . .''107 The case was also noteworthy because of the Court's express rejection of the contention ''that historically the First Amendment was intended to forbid only government preference of one religion over another, not an impartial governmental assistance of all religions.''108 

Four years later, the Court upheld a different released-time program.109 In this one, schools released pupils during school hours, on written request of their parents, so that they might leave the school building and go to religious centers for religious instruction or devotional exercises. The churches reported to the schools the names of children released from the public schools who did not report for religious instruction; children not released remained in the classrooms for regular studies. The Court found the differences between this program and the program struck down in McCollum to be constitutionally significant. Unlike McCollum, where ''the classrooms were used for religious instruction and force of the public school was used to promote that instruction,'' religious instruction was conducted off school premises and ''the public schools do no more than accommodate their schedules.''110 We are a religious people whose institutions presuppose a Supreme Being,'' Justice Douglas wrote for the Court. ''When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe.''111 

 Governmental Encouragement of Religion in Public Schools: Prayers and Bible Reading.--Upon recommendation of the state governing board, a local New York school required each class to begin each school day by reading aloud the following prayer in the presence of the teacher: ''Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessing upon us, our parents, our teachers and our country.'' Students who wished to do so could remain silent or leave the room. Said the Court: ''We think that by using its public school system to encourage recitation of the Regents' prayer, the State of New York had adopted a practice wholly inconsistent with the Establishment Clause. There can, of course, be no doubt that New York's program of daily classroom invocation of God's blessings as prescribed in the Regents' prayer is a religious activity. . . . [W]e think that the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.''112 ''Neither the fact that the prayer may be nondenominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause, as it might from the Free Exercise Clause. . . . The Establishment Clause . . . does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not.''113 

Following the prayer decision came two cases in which parents and their school age children challenged the validity under the Establishment Clause of requirements that each school day begin with readings of selections from the Bible. Scripture reading, like prayers, the Court found, was a religious exercise. ''Given that finding the exercises and the law requiring them are in violation of the Establishment Clause.''114 Rejected were contentions by the State that the object of the programs was the promotion of secular purposes, such as the expounding of moral values, the contradiction of the materialistic trends of the times, the perpetuation of traditional institutions, and the teaching of literature115 and that to forbid the particular exercises was to choose a ''religion of secularism'' in their place.116 Though the ''place of religion in our society is an exalted one,'' the Establishment Clause, the Court continued, prescribed that in ''the relationship between man and religion,'' the State must be ''firmly committed to a position of neutrality.''117 

In Wallace v. Jaffree,118 the Court held invalid an Alabama statute authorizing a 1-minute period of silence in all public schools ''for meditation or prayer.'' Because the only evidence in the record indicated that the words ''or prayer'' had been added to the existing statute by amendment for the sole purpose of returning voluntary prayer to the public schools, the Court found that the first prong of the Lemon test had been violated, i.e. that the statute was invalid as being entirely motivated by a purpose of advancing religion. The Court characterized the legislative intent to return prayer to the public schools as ''quite different from merely protecting every student's right to engage in voluntary prayer during an appropriate moment of silence during the schoolday,''119 and both Justices Powell and O'Connor in concurring opinions suggested that other state statutes authorizing moments of silence might pass constitutional muster.120 

The school prayer decisions served as precedent for the Court's holding in Lee v. Weisman121 that a school-sponsored invocation at a high school commencement violated the Establishment Clause. The Court rebuffed a request to reexamine the Lemon test, finding ''[t]he government involvement with religious activity in this case [to be] pervasive, to the point of creating a state-sponsored and state-directed religious exercise in a public school.'' State officials not only determined that an invocation and benediction should be given, but also selected the religious participant and provided him with guidelines for the content of nonsectarian prayers. The Court, in an opinion by Justice Kennedy, viewed this state participation as coercive in the elementary and secondary school setting.122 The state ''in effect required participation in a religious exercise,'' since the option of not attending ''one of life's most significant occasions'' was no real choice. ''At a minimum,'' the Court concluded, the Establishment Clause ''guarantees that government may not coerce anyone to support or participate in religion or its exercise.''

 Governmental Encouragement of Religion in Public Schools: Curriculum Restriction.--In Epperson v. Arkansas,123 the Court struck down a state statute which made it unlawful for any teacher in any state-supported educational institution ''to teach the theory or doctrine that mankind ascended or descended from a lower order of animals,'' or ''to adopt or use in any such institution a textbook that teaches'' this theory. Agreeing that control of the curriculum of the public schools was largely in the control of local officials, the Court nonetheless held that the motivation of the statute was a fundamentalist belief in the literal reading of the Book of Genesis and that this motivation and result required the voiding of the law. ''The law's effort was confined to an attempt to blot out a particular theory because of its supposed conflict with the Biblical account, literally read. Plainly, the law is contrary to the mandate of the First . . . Amendment to the Constitution.''124 

Similarly invalidated as having the improper purpose of advancing religion was a Louisiana statute mandating balanced treatment of ''creation-science'' and ''evolution-science'' in the public schools. ''The preeminent purpose of the Louisiana legislature,'' the Court found in Edwards v. Aguillard, ''was clearly to advance the religious viewpoint that a supernatural being created humankind.''125 The Court viewed as a ''sham'' the stated purpose of protecting academic freedom, and concluded instead that the legislature's purpose was to narrow the science curriculum in order to discredit evolution ''by counterbalancing its teaching at every turn with the teaching of creation science.''126 

While the greater number of establishment cases have involved educational facilities, in other areas as well there have been contentions that legislative policies have been laws ''respecting'' the establishment of religion.

 Access of Religious Groups to Public Property.--Although government may not promote religion through its educational facilities, it may not bar student religious groups from meeting on public school property if it makes those facilities available to nonreligious student groups. To allow religious groups equal access to a public college's facilities would further a secular purpose, would not constitute an impermissible benefit to religion, and would pose little hazard of entanglement.127 These principles apply to public secondary schools as well as to institutions of higher learning.128 In 1990 the Court upheld application of the Equal Access Act129 to prevent a secondary school from denying access to school premises to a student religious club while granting access to such other ''noncurriculum'' related student groups as a scuba diving club, a chess club, and a service club.130 

Similarly, public schools may not rely on the Establishment Clause as grounds to discriminate against religious groups in after-hours use of school property otherwise available for non-religious social, civic, and recreational purposes;Supp.6 public colleges may not exclude student religious organizations from benefits otherwise provided to a full spectrum of student ''news, information, opinion, entertainment, or academic communications media groups;''Supp.7 and a state that creates a traditional public forum for citizen speeches and unattended displays on a plaza at its state capitol cannot, on Establishment Clause grounds, deny access for a religious display.Supp.8 These cases make clear that the Establishment Clause does not necessarily trump the First Amendment's protection of freedom of speech; in regulating private speech in a public forum, government may not justify discrimination against religious viewpoints as necessary to avoid creating an ''establishment'' of religion.


[Footnote 106] Everson v. Board of Education, 330 U.S. 1, 63 (Justice Rutledge dissenting) (quoted supra p.977, n.41).

[Footnote 107] Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 209-10 (1948).

[Footnote 108] Id. at 211.

[Footnote 109] Zorach v. Clauson, 343 U.S. 306 (1952). Justices Black, Frankfurter, and Jackson dissented. Id. at 315, 320, 323.

[Footnote 110] Id. at 315. See also Abington School Dist. v. Schempp, 374 U.S. 203, 261-63 (1963) (Justice Brennan concurring) (suggesting that the important distinction was that ''the McCollum program placed the religious instruction in the public school classroom in precisely the position of authority held by the regular teachers of secular subjects, while the Zorach program did not'').

[Footnote 111] Id. at 313-14. These cases predated formulation of the Lemon three-part test for religious establishment, and the status of that test--as well as the constitutional status of released-time programs--is unclear. The degree of official and church cooperation may well not rise to a problem of excessive entanglement, but quaere, what is the secular purpose and secular effect of such programs? Some guidance may be provided by Grand Rapids School District v. Ball, 473 U.S. 373 (1985), and Aguilar v. Felton, 473 U.S. 402 (1985), striking down programs using public school teachers for instruction of parochial school students in parochial school facilities, but these were 5-4 decisions and the Court's membership has since changed.

[Footnote 112] Engel v. Vitale, 370 U.S. 421, 424, 425 (1962).

[Footnote 113] Id. at 430. Justice Black for the Court rejected the idea that the prohibition of religious services in public schools evidenced ``a hostility toward religion or toward prayer.'' Id. at 434. Rather, such an application of the First Amendment protected religion from the coercive hand of government and government from control by a religious sect. Dissenting alone, Justice Stewart could not ``see how an `official religion' is established by letting those who want to say a prayer say it. On the contrary, I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation.'' Id. at 444, 445.

[Footnote 114] Abington School Dist. v. Schempp, 374 U.S. 203, 223 (1963). ''[T]he States are requiring the selection and reading at the opening of the school day of verses from the Holy Bible and the recitation of the Lord's Prayer by the students in unison. These exercises are prescribed as part of the curricular activities of students who are required by law to attend school. They are held in the school buildings under the supervision and with the participation of teachers employed in those schools. None of these factors, other than compulsory school attendance, was present in the program upheld in Zorach v. Clauson.'' Id.

[Footnote 115] Id. at 223-24. The Court thought the exercises were clearly religious.

[Footnote 116] Id. at 225. ''We agree of course that the State may not establish a 'religion of secularism' in the sense of affirmatively opposing or showing hostility to religion, thus 'preferring those who believe in no religion over those who do believe.' Zorach v. Clauson, supra, at 314. We do not agree, however, that this decision in any sense has that effect.''

[Footnote 117] Id. 226. Justice Brennan contributed a lengthy concurrence in which he attempted to rationalize the decisions of the Court on the religion clauses and to delineate the principles applicable. He concluded that what the establishment clause foreclosed ''are those involvements of religious with secular institutions which (a) serve the essentially religious activities of religious institutions; (b) employ the organs of government for essentially religious purposes; or (c) use essentially religious means to serve governmental ends, where secular means would suffice.'' Id. at 230, 295. Justice Stewart again dissented alone, feeling that the claims presented were essentially free exercise contentions which were not supported by proof of coercion or of punitive official action for nonparticipation.

[Footnote 118]  472 U.S. 38 (1985).

[Footnote 119] Id. at 59.

[Footnote 120] Justice O'Connor's concurring opinion is notable for its effort to synthesize and refine the Court's Establishment and Free Exercise tests (see also the Justice's concurring opinion in Lynch v. Donnelly), and Justice Rehnquist's dissent for its effort to redirect Establishment Clause analysis by abandoning the tripartite test, discarding any requirement that government be neutral between religion and ''irreligion,'' and confining the scope to a prohibition on establishing a national church or otherwise favoring one religious group over another.

[Footnote 121] 112 S. Ct. 2649 (1992).

[Footnote 122] The Court distinguished Marsh v. Chambers, 463 U.S. 783, 792 (1983), holding that the opening of a state legislative session with a prayer by a state-paid chaplain does not offend the Establishment Clause. The Marsh Court had distinguished Abington on the basis that state legislators, as adults, are ''presumably not readily susceptible to 'religious indoctrination' or 'peer pressure,''' and the Lee Court reiterated this distinction. 112 S. Ct. at 2660.

[Footnote 123]  393 U.S. 97 (1968).

[Footnote 124] Id. at 109.

[Footnote 125]  483 U.S. 578, 591 (1987).

[Footnote 126]  483 U.S. at 589. The Court's conclusion was premised on its finding that ''the term 'creation science,' as used by the legislature . . . embodies the religious belief that a supernatural creator was responsible for the creation of humankind.'' Id. at at 592.

[Footnote 127] Widmar v. Vincent, 454 U.S. 263, 270-75 (1981).

[Footnote 128] Westside Community Bd. of Educ. v. Mergens, 496 U.S. 226 (1990). The Court had noted in Widmar that university students ''are less impressionable than younger students and should be able to appreciate that the University's policy is one of neutrality toward religion,'' 454 U.S. at 274 n.14. The Mergens plurality ignored this distinction, suggesting that the secondary school's neutrality was also evident to its students. 496 U.S. at 252.

[Footnote 129] Pub. L. 98-377, title VIII, 98 Stat. 1302 (1984); 20 U.S.C. Sec. Sec. 4071-74.

[Footnote 130] There was no opinion of the Court on Establishment Clause issues, a plurality of four led by Justice O'Connor applying the three- part Lemon test, and concurring Justices Kennedy and Scalia proposing a less stringent test under which ''neutral'' accommodations of religion would be permissible as long as they do not in effect establish a state religion, and as long as there is no coercion of students to participate in a religious activity. Id. at 2377.

[Footnote 6 (1996 Supplement)] Lamb's Chapel v. Center Moriches School Dist., 508 U.S. 384 (1993). The Court explained that there was ''no realistic danger that the community would think that the District was endorsing religion,'' and that the three-part Lemon test would not have been violated. Id. at 395. Concurring opinions by Justice Scalia, joined by Justice Thomas, and by Justice Kennedy, criticized the Court's reference to Lemon. ''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,'' Justice Scalia lamented. Id. at 398.

[Footnote 7 (1996 Supplement)] Rosenberger v. University of Virginia, 115 S. Ct. 2510 (1995).

[Footnote 8 (1996 Supplement)] Capitol Square Review Bd. v. Pinette, 115 S. Ct. 2440 (1995).