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I. Religion in SchoolsA. Prayer/Bible in the Classroom

1. Engel v. Vitale, 1962, Black`a. Facts: NY school board composes prayer to be said every morning in class: “Almighty God,

we acknowledge our dependence upon Thee and we beg They Blessings upon us, our parents, our teachers and our Country.”

b. Holding: Establishment clause means at least that gov’t cannot compose official prayers as part of a religious program carried on by government

i. History shows dangers of union of church and state – book of common prayerii. No compulsion needed to show establishment, just enactment of lawiii. Madisonian arguments – gov’t bad for religion and religion bad for gov’t

- Also, “take alarm at first experiment on our liberties”c. Dissent, Stewart: No coercion, simply letting people say prayer. Establishment means

classical establishment. Govt prays all the time! “We are a religious people” (Zorach).d. What differentiates school officials and got chaplains?

i. Parents vs. schoolsii. Everyday indoctrination, impressionable kids

e. Black leaves open opportunities to “historical anthems including composer’s expression of faith.” – Is he drawing a line, defining prayer?

2. Abington v. Schempp, 1963, Clarka. Facts: State statutes requiring bible reading every morning without comment. Students may

be excused. Student reading may choose version. Followed by recitation of the Lord’s Prayer.

b. Rule:i. 1) Purpose of the enactment must not be to advance or inhibit religion; andii. 2) Primary effect must not be to advance or inhibit religion

c. Holding: The exercise has a pervasively religious characteri. Even if purpose is not strictly religious, method of accomplishing purpose is religiousii. Religious character evidence in letting students choose versioniii. Allowing for free exercise does not mean state can facilitate religious exerciseiv. This decision does not impose a religion of secularism because a religion of

secularism is hostility toward religion. Neutrality is being asked for.d. Brennan, concurrence: Excusal does not resolve free exercise – still public expression of

belief. Any version of Bible is sectarian.3. Wallace v. Jaffree, 1985, Stevens

a. Facts: Enactment added words “or voluntary prayer” to statute allowing “silent meditation.” Also added “choice for teacher to lead willing in composed prayer” (obviously thrown out).

b. Holding: “or voluntary prayer” violates establishment clausei. Abington test: No secular purpose identified that was not served by meditation clauseii. Legislative history shows prayer in classroom was intendediii. Endorsement test: adding “prayer” conveys a message that the state approves of

prayer in the classroom.c. O’Connor, concurrence: Meditation is not prayer (splitting hairs?). Adding word prayer

evinces religious purpose.d. Is neutrality anything but religion?e. How one frames enactments matters in determining purpose!

4. Questions left open:a. What if religion is normal part of conversation in that community?

i. Religious privacyii. Rights of parentsiii. School shouldn’t be affirming/denying religion

b. Teacher free speech rights?


c. Bible and Literature?d. Remember: Classroom context is special. Extra-sensitive to indoctrination claims.e. Can Students choose to read Bible aloud?f. Students free to pray in school-yard?g. What about viewpoint bias in study of religion classes?

B. Creationism Controversy1. Epperson v. Arkansas, 1968

a. Facts: 1928, AK adopts anti-evolution statute. Product of fundamentalist fervor. Makes it unlawful for teachers to teach evolution. Only AK and MI still have monkey laws.

b. Holding: unconst. because it proscribes a set of knowledge solely because it conflicts with a particular religious doctrine

i. Government must be neutralii. McCollum struck down release time statute – using school buildings for religious

teachingiii. No justification other than religious views of state’s citizens/representativesiv. The fact that so few other states have such laws weighs against existence of public

policy concernc. Black’s concurrence: should only be struck down for vagueness. No establishment. What

about religious freedom of those who do not see it as scientific but as anti-religious? Teachers’ free speech. Parents’ rights to set curriculum.

d. Is neutrality a farce? Proponents of religion feel that anti-religion can be suppressed. But, is this just science vs. one particular view of science?

2. Sex-ed hypo:a. people offended for religious reasons and ban it?b. If state were silence on all things that touch religion, little could be taught.

3. Edwards v. Aguillard, 1987, Brennana. Facts: La. passes “balanced treatment for creation-science and evolution act” - must teach

facts for each side equally or not teach it at all.b. Rule: Lemon test: Secular purpose, neutral primary effect, no excessive entanglementc. Holding: Primary purpose is to endorse a particular religious doctrine.

i. Elementary and secondary school students are very impressionable – stricter scrutiny of act

ii. No academic freedom – science education not helped by forcing teaching of creationism or not teaching evolution. Sen. Keith said: my goal is that neither is taught. How is that pro-education? Teachers already have flexibility to teach what they want.

- Different def. of academic freedom???iii. Fairness not furthered – protects only creationists from discriminationiv. We need not be blind to religious purpose of legislature. Sen Keith made it clear

evolution is against is religious views.d. Powell, Concurrence: really hinges on purpose. Here, purpose not secular. Creationism is a

single sect’s interpretation.e. Scalia, Dissent: No substantial legislative history to judge purpose. Keith’s remarks are not

legislature’s feelings. Text said “academic freedom” – why argue? Also, academic freedom means for kids, not teachers. Construe to save, not destroy. Protect creationists because they are the ones persecuted.

4. Freiler v. Tangipahoa, 5th Cir. 1999 - Anti-evolution disclaimers struck down as having religious purpose

5. Hypo: Texas history curriculuma. Balance problem?b. Distinguished because not religion v. science?

6. Kitzmiller v. Dover School Dist., M.D. Penn. 2005


a. Facts: Evolution disclaimer – reference book Of pandas and peopleb. ID is note science: supernatural causation. It is like creation science irreducible complexity

leads to God. No basis in scientific communityc. Objective observers would know that ID theory/gaps in evolution are of creationist, religious

origins (nativity display cases?)7. What is the alternative? Not teaching? Private school, homeschool?

C. Prayer at Graduation1. Arguments distinguishing from classroom:

a. Not everydayb. Not compulsory to attendc. Solemn occasion

2. Lee v. Weisman, 1992, Kennedya. Facts: High School invites local clergy to pray at graduation. Very generic prayer.b. Holding: prayer violates establishment clause

i. That government may accommodate under free exercise does not mean it can sponsorii. Potential for divisiveness – overt religious exerciseiii. Principal gives guidebook – like government composing prayer!iv. Students forced to support – being respectful. Social/psychological coercion.

c. Scalia, dissent: No history, we are not qualified to do psychology. Standing or sitting as joining? Not a real composition of prayer. What about pledge? High school grads not impressionable children. No legal coercion.

d. Subtly retreats from school prayer cases – requires coercion.e. Kennedy does not use lemon test. What would outcome under Lemon be?

i. Secular purpose – community unification? Other ways to achieve?ii. Primary effect – How does one find this? Framing issue?iii. Excessive entanglement – selection process? guidebook?

f. Kennedy stresses coercion... does it do anything? g. Under O’Connor endorsement test – acknowledgement v. endorsement

i. Endorsement sends message that communicates some are insiders and others are outsiders

ii. Acknowledgement recognizes religion without favoring or disfavoring adherents of other religions

iii. “Reasonable observer’s” view as either endorsement or acknowledgementiv. Atheists?

3. Hypo: What if student composes prayer during speech?a. Coercion same, but lemon test is completely different – no purpose or much entanglementb. Restricting content? - Denying student chance to say something religion-related seems like

free exercise problem4. Tanford v. Brand, 7th Cir. 2007

a. Facts: Prayer at public university graduationb. Holding: Does not violate 1st amend.

i. Distinguished from classroom: Mature audienceii. Coercion: Many students do not attendiii. Lemon: Long-standing tradition, serves secular purpose of solemnizing, de minimis

advancement of religion or entanglementiv. Endorsement: Primary effect does not endorse or approve religion. Also, it is a

simply acknowledgement of religion, as tradition, as under Marsh (Chaplains const. because of unique history of US).

D. Student-lead prayer in school1. 5th cir. said graduations ok – non-sectarian, non-proselytizing – but not football – solemnizing

rationale2. Santa Fe School District v. Doe, 2000, Stevens


a. Facts: School board permitted graduating senior class by secret ballot, to choose whether invocation shall be part of graduation and football games. If so, class shall elect students to deliver non-sectarian, non-proselytizing prayers.

b. Holding: Prayer at football games violates estab. cl.i. Not private speech in public forum: not open to indiscriminate use, majoritarian

process guarantees only majority’s viewsii. Actual/perceived endorsement: school has not distanced itself from views

- Elections only take place because school lets them vote- School requires not proselytizing, nonsectarian prayer- Religious message is obvious way of solemnizing – invocation is asking for

divine assistance (cast doubt on “solemnizing” rationale at all???)- School-scheduled, school-sponsored event objective observer would see it as

school condoning views of majorityiii. Lemon test, purpose prong: invocation not necessary to solemnize; facts show that

school wanted to preserve tradition of prayer at football gamesiv. Coercion: sure, all students not required, but some participants extracurricular

activities are required to be there; even if not coerced to be there, those that do show up are coerced

c. Rehnquist, Dissent: Not enough facts, had the policy been put into practice, students may have chosen according to wholly secular criteria like speaking ability

d. Easy to see school origin of prayer in this case, not student origin3. Hypo: License plates with religious slogan

a. Note forced to have themb. State has approved plate though, according to secular criteria, but still approvedc. What if someone attributes message to state

4. Hypo: Coach lets team captain pray if he wantsa. Better, but consider history. If it is a way of getting around coach’s desire to pray, not good.b. Coach chooses captain.c. What if captain elected?d. What if coach says captain cannot pray?

i. Secular purpose of preventing divisivenessii. But, not being neutral?

5. Main question: What structure of control makes state responsible for content of the message?


II. Government-sponsored Religious Speech in Other ContextsA. Legislative Prayer, Holidays, Religious Symbols, and the Pledge

1. What is the need for gov’t chaplains?a. Military reasons – away from home, special circumstances, need for counselingb. Legislative reasons – away from home, maybe special needs?c. Even if chaplains exist, should they pray?

2. Marsh v. Chambers, 1983, Burgera. Facts: Neb. Legislature opens each day with prayer by chaplain paid by stateb. Holding: In historical context, not violation of estab. cl.

i. Opening legislative sessions with prayer is deep traditionii. First congress appointed paid chaplains three days after adopting 1st amend.iii. Chaplain’s long tenure was due to his performance, not religioniv. No showing that prayer has been exploited to proselytize, advance, disparage any

faithc. Brennan, dissent: Absent history, easily unconst. Prayer, unlike mottos and fixed wordings,

can become sectarian.3. Simpson v. Chesterfield, 4th Cir. 2004 – Wiccan prayer denied because it was pre-Christian and

polytheist. Did not coincide with city goals of prayer. Court upheld denial.a. But, Wynne, 4th Cir. 2004 – cannot refer to Jesus or other sectarian symbols

4. Heinrichs v. Bosman, D. Ind. 2005a. Citizens pray to open legislative session – majoritarian (Santa Fe) or diverse?b. “Ecumenical prayer” – favoritism, divisiveness, composing prayer?c. Enjoined “Christian” prayer, then case dismissed by 7th cir on procedural grounds

5. Residual religious culturea. Keep in mind that plenty of things in culture have religious history but not widespread

religious meaning (San Francisco)b. To what extent can government connect?c. Question rises only in 1980s: No one had a problem before; But, the doctrines had only

recently developed6. Private/Public Forum distinction:

a. Public land, private forum if: selective and attributed to owner of forum.b. Public/private land, public forum if: park open to public, unattended display, equal access

7. Lynch v. Donnelly, 1984, Burgera. Facts: Nativity scene owned by city placed in private park next to Santa Clause and other

Christmas figuresb. Holding: In context, celebration of holiday not violation of estab. cl. under Lemon test

i. Secular purpose can exist even if religious symbolism is means of achieving itii. Does not advance religion any more than other laws (Sunday closing, grants to church

schools, church tax relief)


iii. No excessive entanglement – less day-to-day interaction than religious paintings in public museum

c. O’Connor, concurrence - Endorsement test – 2 prong distillation of lemon test for religious display cases

i. Whether government intends to convey message of endorsement or disapprovalii. Whether government practice has the effect of communicating a message of

government endorsement or disapprovald. Context important in all opinions, but how is context framed?

8. Allegheny Co. v. ACLU, 1989, Blackmuna. Creche inside, on grand staircase. Menorah outside by Christmas tree. Disclaimer by

Menorahb. Holding: Creche impermissibly endorses Christianity under Lynch. Menorah ok.

i. Creche is alone in cherished spot of buildingii. Menorah not super-religious, also not standing alone

c. Reasonable observer is not exactly like reasonable person. It is an omniscient observer who must reasonably perceive endorsement or not.

d. Hypo – Nativity scene and Menorah9. McCreary Co. v. ACLU, 2005, Souter

a. Facts: 10 Commandments placed in courthouse. Challenged just as it is being put up there. Surrounded with documents – all documents acknowledge religion in role of formation of nation

b. Holding: Violates ‘purpose’ prong of lemoni. Context - Religious cultural movement trying to promote revisionist historyii. All that’s needed is plausible religious purpose (contra Lynch?)

10. Van Orden v. Perry, 2005a. Group Donates 10 commandments structure to Texas. Placed outside with lots of other

monuments. Sat there for 40 years with no protestb. Plurality upholds – Thomas, Rehnquist, Scalia, Kennedy

i. Dispenses with Lemon testii. Nature of Monument: Historical meaning, simply having religious content does not

make monument unconst.iii. Nation’s History (Lynch standard): 10 commandments in S. Ct.; they represent law

c. Breyer Concurrence (controlling)i. Pragmatism - establishment clause is there to prevent divisivenessii. Physical setting does not suggest the sacred – area with other monuments

- 40 years with no challenge - evidently no divisiveness- There will be protests over removal of Christian symbols- What is the real harm of 10 commandments?

iii. Not like Stone – not in school to inculcateiv. Not like Allegheny– not in prominent place with legislative history suggesting

religionv. Not like McCreary – no religious objectives of state

d. Stevens, Dissent: Decalogue inherently religious e. Is the real holding: “No new monuments but old ones with appropriate history can stay”?

11. Newdow v. US Congress, 9th Cir. 2002a. Pledge of Allegiance challengedb. Applies all 3 tests (Lemon, Endorsement, Coercion), strikes down Pledgec. Fernandez dissent - Not establishing religion

12. Elk Grove v. Newdow, 2004a. Dismisses 9th cir. case for lack of standingb. Rehnquist, concurrence: Prudential standing rule improperly applied; “under God” not a

religious exercise


c. O’Connor, concurrence: Under Endorsement and Coercion tests – not an establishment. simply ceremonial deismHistory and ubiquity

i. Absence of worship or prayerii. Absence of reference to specific religioniii. Minimal religious context

d. Thomas – Federalism interpretation of establishment clausee. Is O’Connor’s observer a student or a parent?

13. Outline: Merits of a case challenging laws/displays based on religious connectiona. Lemon - Secular & religious purpose (useful for endorsement test) - dual purposes? 3 views:

i. RP is fatal – no (criminal/family laws would be repealed)ii. RP taints law – Strict Scrutiny, similar to race discrimination law, shifts burden of

proof.- No one takes this view either – religious purposes not inherently bad like

racism- No balancing in estab. cl. Cases

iii. Lynch - SP saves it, as long as there is a SP, RP doesn’t matteriv. McCreary co. – if RP predominate, unconst.

b. Endorsement test: purpose to endorse, effect of endorsingi. Through eyes of reasonable, objective, omniscient, observerii. Remember, observer aware of historical context

c. In lower courts – both lemon and endorsement still good law (by a thread), must incorporate them both – lemon as glossed through endorsement is basic law

d. BUT Kennedy Coercion test in Allegheny/Lee v. Weismani. Religious display ok if:

- Non coercive- Is only flexible accommodation/passive acknowledgement- Only for existing symbols- Must not benefit religion in a direct way more substantially than in national

heritageii. Real question over coercion – Kennedy v Scalia in Lee v. Weismaniii. Flexible accommodation – not really present in display case, but mentioned – Salazariv. Passive acknowledgement:

- Historical (Marsh): accurate? Or simply a pretext?- Cultural (Lynch): ok, if secular – majoritarian?- Reverential: Scalia, Thomas, Rehnquist – our tradition to show reverence to

God of Abraham. Tied to cultural? - Brennan struggles with this line.v. Must not benefit existing symbols in novel way – what about new religions?

B. Private Religious Speech in the Public Forum1. Intersection of Free Speech and Freedom of Religion

a. Meaning of religious freedom at foundingi. Liturgical freedom/freedom of worshipii. Free assemblyiii. Free to prepare and disseminate one’s own religious writingsiv. Freedom to proselytizev. Freedom from compulsionvi. Parental freedom to direct religious inculcationvii. Equality of sects

b. Many of these protected by multiple clauses in first amendmentc. Free exercise rights and free speech rights often (mostly? always?) coterminousd. Religious character does not matter with regard to time/place/manner restrictions or

restrictions on unprotected speech


e. Public forumsi. Traditional

- Streets, sidewalks, parks, other places where people have been traditionally free

- Cannot regulate speech except for reasonable, viewpoint-neutral TPM, unprotected

- No subject-matter regulationsii. Designated

- TPM, no viewpoint discrimination- Reasonable content restrictions allowed (___-related only)

iii. Nonpublic fora - once it is not a public forum, government takes responsibility for its speech

2. Widmar v. Vincent, 1981, Powella. Facts: University told Christian group it could not meet in school buildings. Designated

forum. University denied group because of “religious worship” subject-matter restriction. Their “reasonable” restriction was justified using establishment clause.

b. Rule: Lemon Testc. Holding: An equal access policy does not violate establishment clause because the primary

effect is not advancing religion. Caveat: in absence of empirical evidence that religious groups will dominate

i. Open-forum policy clearly has secular purpose and avoids entanglementii. Incidental benefits to religious organization do not violate prohibition on

advancement of religion. Factors regarding whether is “incidental” include 1) no imprimatur of state approval and 2) Forum is available to broad class of religious or nonreligious speakers – benefits broad spectrum

d. Possibility that “commitment of resources” would pose problem; however, only building being given. Building can’t be diverted to direct religious service

e. No attribution (like endorsement) – nobody attributes political groups’ ideas to school3. Lamb’s Chapel v. Center Moriches Free School Dist., 1993, White

a. Facts: NY Law lets people use school property for 10 specified purposes when not using as school. The list does not include religious purposes and NY ct. held that religious groups could not meet. Group wished to show a film, permission denied because film was church-related.

b. Holding: Establishment clause not a defense for denying access. No perceived endorsement, see ‘incidental factors’ in Widmar

i. 1) No school sponsorshipii. 2) An open policy would benefit a wide variety of organizationsiii. New factor: Event would be open to public, not just church members - Perhaps

justifies using public land?c. In order to avoid viewpoint discrimination – allows same topics to be addressed by secular

orgs/speakers?4. Bd. of Educ. v. Mergens, 1990 - Upheld law mandating equal access to public forums by any school

receiving federal funds. Establishment clause challenge rejected.a. Meetings not held during instructional timeb. Did not interfere w/ educational mission of schoolc. Not endorsed by schoold. Involved no participation by school officialse. Held in atmosphere where religious club was one of manyf. No one coerced to attend

5. Rosenberger v. UVA, 1995 - Religious journal – journal/speech still forum – allocation of money. Problem of resources committed to proselytizing. Court rules journal must be funded.


6. Good News Club - After-school program for elementary school children. Misattribution – kids may think school is sponsoring? Ct. allows Good News Club

7. Bronx Household of Faith, 2d. Cir. 2003 - Good News Club does not mean religious activity cannot be treated as a distinct type of activity. Though line between worship and speech is blurred.

8. Capital Square Bd. v. Pinette, 1995a. Facts: Government does not allow KKK to put up cross in capital square along with other

monuments. The state argues it would be an establishment.b. Plurality, Scalia: Yes, religious expression does not violate establishment clause if: (1) it is

purely private; and (2) it occurs in a traditional or designated public forum, publicly announced and open to all. Here, we only have incidental benefits, if any.

i. Does not apply endorsement test because there is no government speechii. Endorsment really means “favoritism” anyway: Allegheny – grand staircase not open

to all; Lynch – crèche did not violate because of contextiii. No perceived endorsement – erroneous conclusion by ‘reasonable observer’ do not

count. People familiar with square know it is an open forum used for private speech. Conflicting opinions are showcased

iv. If it is protected, the fact that it is religious does not matter – it is protected speech – only obscenity can be regulated

c. Concurrence, O’Connor – no need to throw out endorsement testd. Concurrence, Souter (Narrowest, controlling) – endorsement test with disclaimere. Even though Souter’s is probably narrowest, lower courts more often cite the plurality – they

like the bright-line rulef. Scalia argues, convincingly, that not having a bright-line rule will put governments into a

catch-22 – free exercise cl. in tension with estab. cl


g. Display is temporary9. Argument strategies - Competing Claims?

a. If P claims access of speech, Govt will say it is nonpublic - Not establishmentb. If P wants removal, Govt will say it is public - Private speech

10. Pleasant Grove v. Summum, 2009, Alitoa. Facts: Public park contains 15 displays, 11 of which donated by private individuals,

including 10 commandments like those in Van Orden. City rejected Summum’s application to erect its own religious monument because it did not directly relate to the history of the city and Summum did not have longstanding ties to the city.

b. Holding: Not a violation of estab. cl. – government cannot be forced to speaki. Monuments are government speechii. Such monuments can be controlled – limited space in park

c. Concurrence, Scalia – City should not be afraid that monuments violate estab. cl.d. Concurrence, Souter – if estab. cl. becomes an issue, ct should use endorsemente. The court applied the forum doctrine where the gov’t property was capable of

accommodating a large number of public speakers. Parks can only contain a limited number of monuments and still be used for recreation.

f. The display is PERMANENT – they will be there (in the way) forever!g. ACLJ brief – like a library! Ct. doesn’t buy it. Context of few monuments on public land

different than art collections?11. Salazar v. Buono, 2010

a. Remember Summum – things on government land is government speech if not a public forum

b. Exchange between lawyer and Scalia (Jewish cemetery) – reasonable observer? Lupu not fan of endorsement; neither is Alito.

c. Options for avoiding conflict: secularize memorial. No real way to avoid insiders/outsiders when using religious symbolism.

d. From here: on remand, transfer of land: what to do? Lupu: sign on land! Disclaimers are interesting way to solve display problems, more info is a good thing.

12. License plates Hypo:a. Vanity plates: Must allow competing viewpoints. EC – attribution – no. Like Pinetteb. Specialty Plates: Some groups are in and others are not – based upon certain criteria – groups

that discriminate in certain ways are not allowed – viewpoint issues. Similar content restrictions as well. State’s message – like Summum? Or, designated public forum?

13. Acknowledgement and Accomodation arguments: Justices against endorsement test usually ok with acknowledgement. Is it accommodation to allow a historical monument with religious undertones to stand? Acknowledgement is stronger argument than accommodation in display cases, but limits of “acknowledgement” has never been defined by the court.


III. Financial Support of Religious EntitiesA. Everson v. Bd. of Educ. of Ewing, 1947, Black

1. Facts: Busing program applied to all students, even those going to parochial schools.2. Infamous “Estab. cl. means at least this...”3. Holding: Program paying for fares of both public and parochial schools is const.

a. Parents’ rights to choose schoolb. Law neutrally appliesc. State-paid policemen protect all property, even religion onesd. No money contributed directly to schools (implies that would be unconst.)

4. Jackson is wrong, facts do not suggest religious discrimination. That’s a really different case!5. States cannot ban religious education, but not required to subsidize (CLS v. Martinez)6. Direct/Indirect distinction – common reading of Everson

a. Direct – advancing educational mission means advancing religious mission.b. Indirect – protecting public health and safety.

B. Allen – Local bd approves books, buy them. Secular books. Loaned them to students. “Loaned” to parents, not schools, even though schools would hold on to them over summers. Attempt to make aid appear indirect. Upheld as indirect aid to the secular educational mission. Approval process could be gamed – excessive entanglement?

C. Lemon v. Kurtzman, 19711. Facts: pays teachers/schools for secular education2. Formation of Lemon test – Secular purpose (Abington, Primary effect not to inhibit or advance

religion (Abington), No excessive entanglement of religion (Walz)3. Holding: unconst. because of excessive entanglement

a. Getting kids to school is valid secular purposeb. Primary effect prong not addressedc. Effective enforcement would require monitoring to make sure money and teachers used only

for secular educationd. Without monitoring, primary effect would/could be to promote religione. Political divisiveness? (not mentioned much in later cases)

D. Lupu Lemon Test:1. In financial aid cases, primary effect and excessive entanglement are really the contentious issues.

Secular purpose often stipulated.2. Not clear whether secular purpose must outweigh religious or whether existence of a secular purpose

makes statute per se valid. Can’t be a pretext – McCreary3. Primary effect cannot be to “advance or inhibit” religion. Inhibit – free exercise problem? Probably

not useful to get around Smith – thus, doesn’t do any workE. Tilton and Richardson - colleges can receive money a long as they’re not pervasively sectarian. no reverter

clauses (secular use for 20 years, then whatever)F. Direct/Indirect financing (Everson)

1. Direct - Aguilar, 1985 overturned by Agostini, 1997, Public employees providing on site teaching2. Indirect

a. Nyquist, 1973 – tax credits for school tuition struck downb. Mueller (tax deduction for private school tuition), Witters (scholarship for religious training),

Zobrest (state sign language interpreter used in religious school) – all upheldG. Mitchell v. Helms, 2000

1. Facts: Federal program loans educational material to religious schoolsa. Prof: That it’s a fed program matters because demography changes – much smaller

proportion going to specific religion or religion at all – compare to 60s – most catholic2. Plurality, Thomas: Secular purpose and neutral distribution is all that matters


a. Indirect financing - Once money is handed over, no more state actionb. In order to be indirect, private choice, money must “pass through the hands of”

parents/beneficiariesc. Old “pervasively sectarian” characterization is anti-catholic

3. O’Connor/Breyer opinion, controllinga. Pervasively sectarian rule from Tilton/Richardson not mentioned! Prof: implicitly

repudiating?b. Private choice does not matter – is government responsible for inculcation of religious

values? If so, then violates establishment. It is direct aid, regardless of whose hands it passes through.

c. If there has to be monitoring to ensure materials only used for secular purposes, the monitoring is ok. We can trust that teachers will comply.

H. Zelman v. Simmons-Harris, 2002, Rehnquist1. Facts: Tuition vouchers for private schools to poor parents.2. Holding: Upheld because it money is diverted via private choice and it is neutrally distributed

a. Choice - No government action is pushing, nudging, driving people to religious schoolsi. Range of choices has to be adequate. Doesn’t just look at private schools – looks at

all schools, private and public.b. Neutral - No discrimination, including on religion, in program among students

3. Prof: Like government salary – no connection to spending. Voucher has structure – connection, better question is, did gov’t create incentive to go to religion?

4. Ways to expand range of choice in order to avoid incentivizing religion: Force suburban public schools to participate, give more money – more schools will participate, Voucher students can opt out of religious parts of private school religious practices (Milwaukee method, Lupu’s fave)

I. Overview:1. Direct aid (Mitchell concurrence) – Lemon modified, weak. No direct aid.2. Indirect (Zelman) – beneficiaries’ choice. 1) Religion-neutral structure. 2) Genuine choice.

J. Freedom From Religion Foundation v. McCallum, 7th Cir. 20031. Facts: Faith Works Milwaukee – residential program for substance abuse. Self-proclaimed “Faith-

intensive” program. More than AA, it was evangelical. Money given to program from state employment department welfare program to accept welfare-accepting patients. No conditions on payments.

2. First case: Unconstitutional – direct payments, no conditions for only secular use. Even if only paying for secular half, its interwoven – cant separate money.

3. Second case: Const.: Choice between jail and any substance abuse program. Beneficiaries choose FWM State will pay for program (Posner)

a. Only needs equal opportunity and real choiceb. Does not need to pass through hands of beneficiaryc. If religious one is best, does not mean that we need religious one to get worst

IV. Tax-Payer StandingA. Flast, 1968 – exception for establishment clause casesB. Valley Forge Christian – narrows, only legislative spending C. Hein – again, only legislative spending, does not matter that congress made money available to executiveD. Winn, 9th Cir. 2010


V. Free ExerciseA. Basic Principles

1. Obvious overlap between establishment and free exercisea. Strong establishments will suppress free exerciseb. However, free exercise clause is there for a reason!

i. England: free exercise and establishmentii. Secular society: no establishment and no free exerciseiii. America: no establishment and free exercise

c. Recall Lupu’s elements of religious freedom - Free exercise will do some distinctive work2. Reynolds v. US, 1879

a. Facts: Reynolds is a mormon polygamist, charged with polygamy. Claimed religious privilege

b. Holding: Government cannot interfere with mere belief and opinion, but may interfere with practices.

i. Jefferson said so – Virginia traditionii. Polygamy historically bannediii. Human sacrifice analogy (counter: consent?)iv. Regina v. Wagstaff allowed parents to let child die without seeing doctor – but that

was negative act, not positivec. Most often cited for belief/action distinction (Smith)

i. This distinction makes free exercise practically uselessii. Unless excluded middle: coterminous with other rights

3. Cantwell v. Connecticut, 1940 – JW playing phonograph4. McDaniel v. Paty, 1978

a. Facts: statute barring clergy from holding officeb. Holding: Law deprived McDaniel of first amendment rights of free exercise

i. Law not useful for original purpose; no rational basis for discriminationii. Madison: such laws punish those in religious profession with deprivation of rightsiii. Witherspoon: it makes no sense that one can hold office after being rejected as unfit

for clergy but not while one is a respectable clergymanc. Brennan, concurrence: establishment clause not only not a defense, it actively prohibits such

legislationd. Exclusion/discrimination case – equal protection

5. In the beginning, free exercise tied to other rights – free speech, free associationB. Mandatory accommodation - Religious privilege/exemption or religious discrimination?

1. Sherbert v. Verner, 1963, Brennana. Facts: 7th-day Adventist fired because she refused to work on Saturday. Applied for

unemployment. Denied because she could work, but made personal choice not to.b. Rule: Free exercise must be accommodated if:

i. 1 – Reason for exemption request is religiousii. 2 – There is a substantial burden is placed on free exercise of that religion.iii. 3 – Compelling state interest does not outweigh the interest of free exercise rights.

Only gravest abuses, endangering paramount interest give occasion for permissible limitation. If compelling interest exists, must use least restrictive means.


c. Holding: Yes burden, no compelling interest outweighing. State cannot condition benefits so as to constrain a worker to abandon religious convictions respecting a day of rest.

i. Burden - It may be indirect, but the purpose and effect matters – indirect effect is just as bad. Pressure upon her to forego her religious convictions. Speiser v. Randall – does not work to say benefits are a privilege. Granting of benefits may not be used to deter free exercise. There does appear to be burdensome discrimination – the statute excuses Sunday worshippers.

ii. No Compelling Interest - Interest in preventing fraudulent claims is not considered because state did not bring up this argument to state supreme court. Also, narrowly tailored legislation can prevent fraudulent claims. Unlike Braunfeld v. Brown – state had an interest in choosing one day for rest. It did so by selecting majority Christian day of rest. Simply made other faiths more expensive, but secular purpose could not have been performed another way.

iii. Exemptions are not establishing religion – simply enforcing government neutrality in the face of religious differences

d. Stewart, concurrence: Concur because free exercise demands positive protection, establishment clause read too broadly. There seems to be a conflict between establishment clause and free exercise clause jurisprudence

e. Harlan, Dissent: Regardless of whether it was religious, it was still a personal reason. This overrules braufeld v. brown. Forces court to figure out whether behavior is religiously motivated. Const. allows state to provide and define religious exemption or not.

f. Coercion more evident in Reynolds! Still, court finds coercive burden in disqualification. Change?

g. Is it about privilege? Or discrimination? - Is it like Paty? Going back, the court does mention that Sunday privilege exists and not others.

2. Versions of coercion – understanding Sherbert v. Vernera. 1 – burden on religious practice – personal reasonsb. 2 - secular causes privileged over analogous religious causes- working on certain days

preferred over working on other days - compelling interestc. 3 – sectarian discrimination – other exemptions

3. Thomas v. Rev. Bd. of Ind. Employment, 1981, Burgera. Facts: Thomas left his job when he was reassigned from materials production to actual

weapons production. As a JW, he did not think weapons production was moral. He took a stricter interpretation of JW scripture than his coworker. Denied unemployment benefits.

b. Holding: Religious, burden, and no compelling interest. Violates FE cl.i. Testimony crucial in deciding whether it is religious belief. Specific articulation

does not matter. Intrafaith disagreement does not concern ct.ii. Burden because choice forced between fidelity to religious belief or cessation of

work.iii. No compelling interest/least restrictive means. No evidence that bad situation might

result from exemptions. iv. No establishment – simply accommodation under Verner

c. Can free exercise clause be construed to protect moral conscience? (Seeger)d. How is it different than Sherbert?

4. Wisconsin v. Yoder, 1972, Burgera. Facts: Didn’t want to send kids to high school. Wanted them to learn Amish ways at home.b. Rule: Sherbert v. Verner testc. Holding: Religious, burden, and no compelling interest. Violates FE

i. Religious, not person preference: Yes, belief in pulling kids from high school is a “deep religious conviction, shared by organized group, and intimately related to daily living.” Historical way of life. Expert testimony/Evidence of “sustained faith.”


ii. Burden exists: Even if it’s on conduct not belief (contra Reynolds?). Uniformity does not prevent burden if it unduly burdens.

iii. No Compelling interest: Amish sufficiently prepare their children for life. Amish have been a successful social unit. There is social value to having groups who seclude themselves from society. Amish children still receiving vocational education. No evidence that Amish children are being exploited.

iv. Addressing dissent’s concerns: Holding does not bear on the situation where parent and child have conflicting interest. State has no right to direct child’s religious upbringing. Strong presumption in favor of parent’s right to direct child’s education (Pierce).

d. Dissent, Douglas: Liberty of children? Religion is an individual experience (this is western bias!). Parents are holding kids back from experiencing world. The law and order record of the Amish is irrelevant.

e. In Yoder, Court seems to use version 1 of Vernerf. Courts are not buying that secular humanism is a religiong. Exemptions from secular criteria usually lose: Not a substantial burden, Compelling interest. h. Yoder, is a very narrow, as-applied decision

5. Formulation of accommodation cases:a. Trigger: Substantial burden on religious practice

i. Definition of religion – tax exempt status. Argument by analogy. Sincerity in religious beliefs – the more material incentives, the more skeptical about sincerity.

ii. Burden – choice between x and faith suffices as burdenb. Test - non-exemption necessary to compelling state interestc. In early 80s, trigger part nuanced, test is weakenedd. Steady erosion toward Smith

6. US v. Lee, 1982, Burgera. Facts: Amish carpenter failed to file social security tax returns for employeesb. Holding: paying taxes and receiving benefits is religious burden, but there exists a

compelling interest in social securityi. There is already an exception for self-employed peopleii. Mandatory participation is indispensable to the fiscal vitality of the s.s. systemiii. There is no pricinpled way to distinguish between general taxes and those imposed

under s.s. (tax, not a penalty)iv. Tax system could not function if religious groups could object to spending of money

c. Self-employed exemption only applies to religions in existence before 1950s – const. problems?

d. Is uniformity really what the case is about – s.s. is earmarkede. Compelling interest test is weakened – it is met, but in a weak way

7. Bob Jones University v. US, 1983, Burgera. Facts: BJU prohibits interracial datingb. Holding: Loss of 501c3 status is huge religious burden, but state has a compelling interest in

prohibiting racial discriminationc. No discussion of strict as-applied exemption – test further weakened

8. Goldman v. Weinberger, 1986, Rehnquista. Facts: Goldman not allowed to wear his yarmulke on military base because it is not part of

uniformb. Holding: Regulations challenged reasonably and evenhandedly regulate dress in the interest

of the military’s interest for uniformity. Court must give great deference to the military, even when regs challenged on first amendment grounds.

i. Professional judgment of air force is that standardized uniforms encourage subordination or identity in favor of the group – only ranks matter


ii. Military life may be more objectionable, but first amendment does not require military to accommodate

c. Concurrence, Stevens: Uniformity is good because it means uniform, equal treatment for all members. Exceptions would require valuation – how far do the exceptions go?

d. Brennan, Dissent: Decision effectively bars orthodox jews from fulfilling religious duty. Military must state a specific reason for uniformity, not just state that they want uniformity. Will uniformity be lost by a yarmulke? Current exceptions allow non-visible religious things – doesn’t this discriminate against religions that wear visible things?

e. Special enclave – special concerns, O’Lone prison special toof. Dominant culture concerns

9. Lyng v. Northwest Indian Cemetery Protective Assoc., 1988, O’Connora. Facts: gov’t wants to permit harvesting and construct a road through a portion of national

forest that has been traditionally used for religious purposes by three native American tribes.b. Holding: No substantial burden because no coercion to violate or penalty for not violating

religious beliefi. Bowen v. Roy, 1986: Mother did not want daughter to be given social security

number. Ct. ruled that FE clause could not be understood to require gov’t to conduct its internal affairs in ways which comport with religious beliefs of particular citizens.

ii. Cannot weigh the “centrality” of religious belief or its “objective” nature – that would require determining truth of underlying religious beliefs

iii. The crucial word is “prohibit” – the FE clause is written in terms of what gov’t cannot do to individual, not what individual can command government to do. It is government land! Government could not function if it tried to satisfy all citizens’ beliefs!

iv. Under Yoder, accommodation only required when the statute is “coercive in nature.”c. Dissent, Brennan: If religious groups show centrality, and that govt action will prevent such a

central practice, it will be a substantial burden regardless of the “nature of coercion.” Slippery slope of exceptions not before the court today.

d. Public land – is it really an internal gov’t affair? – Lupu: easement on land?10. Employment Division v. Smith, 1990, Scalia

a. Facts: Unemployment comp not granted to Smith. Fired from drug rehab because he smoked Peyote on his own time.

b. Holding: The 3-part Sherbert test is inapplicable to challenges against generally applicable, neutral laws. FE does not grant a privilege.

i. A permissible reading of the text is that FE clause prohibits taxes enabled with the object of preventing FE. However, such a reading does not prevent the gov’t from enacting a tax that might have the incidental effect.

ii. Yoder is about parental rights (Pierce, etc.) – Hybrid rightsiii. Sherbert/Thomas – unavailable for work without “good cause.” Those cases have

nothing to do with across-the-board criminal prohibitionc. O’Connor, concurrence: Rejects court’s reasoning. Exercise is tied to action.d. Not limited to criminal law, civil law violations face same fatee. More restrictive than Reynolds? At least Reynolds alludes to “peace and good order” as a

prerequisite to general applicability – stricter?f. After Smith, State constitutions appealed to, state legislation, and RFRA passedg. Is Smith Correct? Line drawing. Smaller gov’t at founding.h. Did Smith just confirm what the law was or did it make a difference? Some cases that would

have bee`n uncertain are now dead-losers.i. Lower courts did not let hybrid claims expand religion clausesj. SYT required determination of “substantial burden” – perhaps killed Smith

11. Lukumi Babalu v. Hialeah, 1993, Kennedya. Facts: Santeria religion practices animal sacrifice. City outlaws cruel killing of animals.


b. Rule: A law that is not generally applicable or neutral toward religion must meet compelling interest/least restrictive means standard

c. Holding: Not neutral, not generally applicable – ordinances do not survive strict scrutiny standard

i. Not neutral - the ordinances had as their object the suppression of religion. The ordinances targeted the central element of Santeria worship. Use of words “sacrifice” and “ritual” in statute.

ii. Not generally applicable because they are underinclusive – they only achieve govt’s stated interest as against religious conduct. In effect, the statutes only really punish Santeria. Exemptions for kosher slaughter. Exemptions for small food establishments. Smith noted that, when exemptions are available, gov’t may not refuse exemption for religion without compelling reason.

iii. Statutes ban unnecessary killing – atty general admitted that religious killing is classified as unnecessary. Government deciding religion is unnecessary!

iv. Do not meet strict scrutiny - Overbroad – they prohibit Santeria sacrifices even if carried out in a sanitary manner.

d. Notice that post-smith, Lukumi test does not include “substantial burden” – is it because this is a religious question? What about disputes over property? General rule: Courts should defer to internal decision-making body, if it is a hierarchical church. If courts can find neutral principles of law, it can help them resolve dispute.

e. Lukumi interpretations of Smith: Does one exemption means religion require exemption or compelling interest? Or, do exemptions show non-neutrality, but one exemption is not dispositive?

12. Christian Legal Society v. Martinez – not FE case, but FE undertonesa. Might have been a test of what is and isn’t a neutral rule – but wasn’t lawyered that wayb. All-comers was definitely a neutral rule, but what about written rule?c. No showing of impact on religious freedom

C. Permissible statutory Accommodation1. City of Boerne v. Flores, 1997, Kennedy

a. Facts: RFRA requires all federal government and state governments to follow pre-smith SYT FE test. Justified under 14th amend.’s enforcement power.

b. Holding: RFRA struck down. 14th amend.’s enforcement power is remedial. Ct demands ‘congruence and proportionality’ to documented harm.

2. Gonzales v. O Espirita Beneficiente Uniao Do Vegetal, 2006, Robertsa. Facts: Drug case - RFRA applied to Fed gov’t. District ct found evidence of dangers of drug

use in “equipoise”. Feds do not even challenge const. of RFRA.b. Ct simply has to apply RFRA, no general applicability test from Smith.c. Still might be subject to state drug laws, but exempted from federal ones.

3. RFRAs probably not seperation of powers problem. Simply modifies congress’s bills enacted through art. I powers. Using supreme ct’s old test does not mean congress is usurping power.

4. State RFRAs: Lund article - State RFRAs ignored. Establishment clause problem? – neutrality between religion and non-religion – religious privilege? Conflict between the clauses? Room in between? Imposition on third-parties?

5. Estate of Thornton v. Caldor, 1985, Burgera. Facts: Civil Rights Act demands reasonable accommodation. This law went further:

Connecticut law did not allow any employer to fire an employee for not showing up to work on the employee’s chosen Sabbath.

b. Rule: applied Lemon testc. Holding: Statute goes beyond incidental or remote effect of advancing religion – its primary

effect is advancing a particular religious practice. Violates ECi. The statute arms Sabbath-observers with an unqualified and absolute right not to work

on that day


ii. Imposes on business a duty to conform to religious practices of employeesiii. No exceptions:There is no exception for special circumstances. No exception for

financial ability of employer to accommodate. No consideration as to whether employer has tried to accommodate.

iv. Violates neutrality by forcing others to conform to certain religious sensibilities (Learned Hand)

d. O’Connor, Concurrence: Impermissible effect because it conveys message of endorsement. Anti-discrimination law has a valid secular purpose- but this law gives a privilege to religion.

e. Forces private party to bear burden. Privately created burden. Simply transfers burden. Free exercise especially does not require private accommodation to government burdens.

6. LDS Church v. Amos, 1987, Whitea. Facts: §702 of Civil Rights Act exempts religious orgs from title VII’s prohibition against

employment discrimination of the basis of religion. Mayson fired from gym because he was not a member of LDS church.

b. Rule: Lemon testc. Holding: exemption does not violate EC

i. Secular Purpose - It is a permissible legislative purpose to alleviate significant governmental burdens. It is a significant burden to force a religious organization to predict which of its activities a secular court might consider religious. Congress’ purpose was to minimize government interference in the decision-making process of religions.

ii. No entanglement – it effectuates a more complete separation!iii. No advancement of religion by government.

- Its true that religious groups have been more able to advance their purposes, but a law is not unconst. merely because it allows churches to advance religion

- No evidence that churches will use this advantage in the profit-making world- Distinguishes Caldor – Conn. law gave sabbatarians force of law. Here, gov’t

merely allowing church to fire, not giving church force of law. gov’t/private action distinction – no legal obligation.

- That § 702 singles out religious orgs is ok – government is allowed to alleviate a significant gov’t burden on religion

- No equal protection argument – does not discriminate on religion, simply alleviates a burden placed on religions

d. Brennan, concurrence: exemption should be for any nonprofit; otherwise, state deciding what is religious and what isn’t

e. O’Connor, concurrence: lemon test is problem: effect does advance religion, but that in itself is not a problem. Endorsement is problem. Exemption for for-profit religious orgs remains open const. question.

f. Distinct from Caldor:i. Government imposing burdenii. Sect-neutral exemptioniii. Organizations are free to only hire people with consonant views – exception in title

VII simply allows religions to do that.g. In Amos, CRA exception is to only religious discrimination in regards to ALL employeesh. Ministerial exception to all employment discrimination law provisions for ministerial

employees: Applies when duties are primarily religious and involve communicating the faith. Application of employment laws would mean deciding a religious question.

i. EEOC v. Catholic University, D.C. Cir. – ministerial exception survives Smith: Rests on ec and fec

ii. Even Smith says courts should not decide religious questions


7. Caldor/Amos test:a. Is there a government burden on religious freedom? Accommodation is dependent upon

relieving a burden, not sponsoring preference. b. gov’t merely allowing church to fire, not giving church force of law.c. Sect-neutral?

8. RLUIPAa. Prisoner section of RLUIPA responding to O’Lone v. Shabazz – great deference to prison

officials, allows even religious-specific rulesb. General Rule:

i. Substantial burden on religionii. Compelling interest/least restrictive means

c. Const. of land use not test by s. ct. but other cts rejected such challenges9. Cutter v. Wilkinson, 2005, Ginsburg

a. Facts: congress held 3 years of hearing finding that frivolous or arbitrary barriers impeded institutionalized persons.

b. Holding: There is room between the joints of the religion clauses. Compare Smith with Amos. RLUIPA fits within the corridor between the clauses.

i. Const. because it alleviates government created burdensii. Prescriptions are neutral among different faithsiii. Prisoners are dependent upon government permission to do thingsiv. Statutory response to Goldman – accommodation of religious apparelv. RLUIPA does not elevate accommodation over safety: Distinguishes Caldor. Context

matters in statute application. Mindful of effects on prisoners/guards, security of prison, and the fact they are prisoners.

vi. Amos – religious accommodations need not come packaged with benefits to secular entities.

c. Lupu: In order to justify religious accommodation, religious liberty must be substantially burdened as in Prisons.

d. Minimize religious privilege by making religious accommodations available to the nonreligious, if possible

10. Const. of RLUIPA land use not test by s. ct. but other cts rejected such challengesa. Issue 1: typically, whether forcing church to spend more money is a substantial burdenb. Issue 2: Compelling interest – third party interest (neighbors) and interest of city (taxes)?

Least restrictive means (regulate size)?c. In essence, who should give? All about trade-offs


VI. Intro/HistoryA. All human organizations feel need for a particular policy on religion

1. Establishmenta. Character of the state

2. Exercise3. Why?

a. Rival to stateb. Potential partnerc. Produces culture

i. loyaltiesii. Produces norms

4. First assignments show narrative of religion policies in the USB. Classic establishment

1. Church of England – strong-form establishmenta. direct government control over appt of clergyb. bishops in house of lordsc. parliament approved articles of faith and book of common prayerd. Religion tests for all important offices

i. Colonies also had this requirement, though a looser versione. Mandatory church attendance - fines

C. Articles of Confederation had a weak policy1. Mutual defense pact – state attacked for any reason – religion mentioned as example 1

D. Varied range of religion policies as of 1780s


1. Some New England states had multiple establishmentsa. Every town chose a churchb. One could individually donate to a church of one’s choosing, providing it was an approved

type of church2. Virginia historically had a singular Anglican establishment3. None in Rhode Island or Pennsylvania or Maryland

E. Virginia story1. After revolution, Church of England affiliation was lost2. 1780s, Patrick Henry wants to reinstate support of church – Christian teaching bill

a. multiple establishment system – individually designated taxb. one could pay salaries of chosen minister or pay for building of chosen churchesc. secular purpose of education of morality, peace, general knowledge – common point of view

i. then again, it is biased in favor of protestants, the largest portion of communityii. Protestantism was uncontrovertibly considered good

3. Jefferson, away in France, had previously introduced a bill establishing religious freedom4. Madison becomes chief opponent of teaching bill – writes memorial and remonstrance

a. Some arguments related to first principles – rights, theologyi. 1 - Duty to Creator higher than that of civil society. Duty to Creator comes to an

individual by reason and conviction- inherently enlightenment and individualist view- Religion wholly exempt from state’s cognizance – separationist view

What about codes that accidentally affect religionb. Some arguments based on empirical facts – slippery slope, past abuses of clergyc. Recurrent themes – nowadays and then:

i. Religion is necessarily voluntaryii. Equality of sectsiii. State corrupting religioniv. Civil peace threatened by sectarian rivalry

5. Jefferson’s Billa. No one coerced to support ministryb. No one prosecuted by government for their opinions or beliefs

F. Religious character of US?1. Not in preamble – “blessings”2. Oaths, but choice to “affirm”3. No religious test for federal office – most important!

a. Of course, a religious test could be inflicted by citizens via votes4. “the year of our lord” – the date of const.5. 1st amendment

a. first substantive thing said was Reynolds in 1879b. Bradfield v Roberts 1899 – first establishment clause case – money to religious hospital – no

establishmentG. Everson – all justices agree that the Virginia story is the complete history of first amendment

1. incorporates establishment clausea. Incororation? – Thomas

2. Black’s “at least” is potentially quite sweeping – holidays, tax exemptions, etc?3. Contributes to lemon test4. 9 judges agree on history, but do not agree on issue of bus tokens

H. Rehnquists’ dissent in Wallace v. Jaffree – we’ve been basing originalist argument on false history1. Madison’s role is overemphasized – Madison was a politician at the time of drafting, not philosopher

a. Establishment clause as a peace treaty – no one church wins!I. Rehnquist unsettles history, but does not resettle - 4 major themes

1. drafting history


a. Housei. Madison’s draft – conscience – disconnects rights of conscience and religious belief –

concerned w/ coercionii. Carroll, catholic, really concerned about coercioniii. “touching” formulation voted down

b. Senatei. Votes down non-preferentialist clause, decides that congress shall not establish

articles of worshipc. Is free exercise = to conscience, or broader?d. Respecting an establishment – no drafting history with this phrase

2. 18th and 19th century practicea. Thanksgiving proclamations, chaplain, money for missionaries

3. 19th century commentarya. Joseph Story – gov’t can promote Christian good order

4. the second disestablishment (14th amendment, 1868)a. by the 1830s, state establishments were goneb. Christian foundations of common law are challengedc. Significant immigrationd. Freedmen – were denied religious freedom by the southern states

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