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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[p.992]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[p.993]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

[p.994]

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

[p.995]

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[p.996]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.”

Supplement: [P. 996, add to text at end of section:]

In Santa Fe Independent School District v. Doe 49 the Court held a school district’s policy permitting high school students to vote on whether to have an “invocation and/or prayer” delivered prior to home football games by a student elected for that purpose to violate the Establishment Clause. It found the policy to violate each one of the tests it has formulated for Establishment Clause cases. The preference given for an “invocation” in the text of the school district’s policy, the long history of pre–game prayer led by a student “chaplain” in the school district, and the widespread perception that “the policy is about prayer,” the Court said, made clear that its purpose was not secular but was to preserve a popular state– sponsored religious practice in violation of the first prong of the Lemon test. Moreover, it said, the policy violated the coercion test by forcing unwilling students into participating in a religious exercise. Some students—the cheerleaders, the band, football players—had to attend, it noted, and others were compelled to do so by peer pressure. “The constitutional command will not permit the District ‘to exact religious conformity from a student as the price’ of joining her classmates at a varsity football game,” the Court held. Finally, it said, the speech sanctioned by the policy was not private speech but government–sponsored speech that would be perceived as a government endorsement of religion. The long history of pre–game prayer, the bias toward religion in the policy itself, the fact that the message would be “delivered to a large audience assembled as part of a regularly scheduled, school–sponsored function conducted on school property” and over the school’s public address system, the Court asserted, all meant that the speech was not genuine private speech but would be perceived as “stamped with the school’s seal of approval.” The Court concluded that “the policy is invalid on its face because it establishes an improper majoritarian election on religion, and unquestionably has the purpose and creates the perception of encouraging the delivery of prayer at a series of important school events.”

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.

Tax Exemptions of Religious Property.—Every State and the District of Columbia provide for tax exemptions for religious institutions, and the history of such exemptions goes back to the time of our establishment as a polity. The only expression by a Supreme Court Justice prior to 1970 was by Justice Brennan, who deemed tax exemptions constitutional because the benefit conferred was incidental to the religious character of the institutions concerned.131 Then, in 1970, a nearly unanimous Court sustained a state exemption from real or personal property taxation of “property used exclusively for religious, educational or charitable purposes” owned by a corporation or association which was conducted exclusively for[p.998]one or more of these purposes and did not operate for profit.132 The first prong of a two–prong argument saw the Court adopting Justice Brennan’s rationale. Using the secular purpose and effect test, Chief Justice Burger noted that the purpose of the exemption was not to single out churches for special favor; instead, the exemption applied to a broad category of associations having many common features and all dedicated to social betterment. Thus, churches as well as museums, hospitals, libraries, charitable organizations, professional associations, and the like, all non–profit, and all having a beneficial and stabilizing influence in community life, were to be encouraged by being treated specially in the tax laws. The primary effect of the exemptions was not to aid religion; the primary effect was secular and any assistance to religion was merely incidental.133

For the second prong, the Court created a new test, the entanglement test,134 by which to judge the program. There was some entanglement whether there were exemptions or not, Chief Justice Burger continued, but with exemptions there was minimal involvement. But termination of exemptions would deeply involve government in the internal affairs of religious bodies, because evaluation of religious properties for tax purposes would be required and there would be tax liens and foreclosures and litigation concerning such matters.135

While the general issue is now settled, it is to be expected that variations of the exemption upheld in Walz will present the Court with an opportunity to elaborate the field still further.136 For example, the Court determined that a sales tax exemption applicable only to religious publications constituted a violation of the Establishment Clause,137 and, on the other hand, that application of a general sales and use tax provision to religious publications violates neither the Establishment Clause nor the Free Exercise Clause.138


Footnotes

106 Everson v. Board of Education, 330 U.S. 1, 63 (Justice Rutledge dissenting) (quoted supra p.977, n.41).
107 Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 209–10 (1948) .
108 Id. at 211.
109 Zorach v. Clauson, 343 U.S. 306 (1952) . Justices Black, Frankfurter, and Jackson dissented. Id. at 315, 320, 323.
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”).
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.
112 Engel v. Vitale, 370 U.S. 421, 424, 425 (1962) .
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.
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.
115 Id. at 223–24. The Court thought the exercises were clearly religious.
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.”
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.
While numerous efforts were made over the years to overturn these cases, through constitutional amendment and through limitations on the Court’s jurisdiction, the Supreme Court itself has had no occasion to review the area again. But see Stone v. Graham, 449 U.S. 39 (1980) (summarily reversing state court and invalidating statute requiring the posting of the Ten Commandments, purchased with private contributions, on the wall of each public classroom).
118 472 U.S. 38 (1985) .
119 Id. at 59.
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.
121 112 Ct. 2649 (1992).

Supplement: [P. 995, revise n.121 to read:]

505 U.S. 577 (1992) .

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.
123 393 U.S. 97 (1968) .
124 Id. at 109.
125 483 U.S. 578, 591 (1987) .
126 483U.S. at 589 483U.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.[p.997]
Access of Religious Groups to School 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

Supplement: [P. 997, add to text following n.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; 50 nor may public colleges exclude student religious organizations from benefits otherwise provided to a full spectrum of student “news, information, opinion, entertainment, or academic communications media groups.” 51 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.

127 Widmar v. Vincent, 454 U.S. 263, 270–75 (1981) .
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,” 454U.S. at 274 454U.S. at 274 n.14. The Mergens plurality ignored this distinction, suggesting that the secondary school’s neutrality was also evident to its students. 496U.S. at 252 496U.S. at 252.
129 Pub. L. 98–377, title VIII, 98 Stat. 1302 (1984); 20 U.S.C. §§ 4071 –74.
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.
131 “If religious institutions benefit, it is in spite of rather than because of their religious character. For religious institutions simply share benefits which government makes generally available to educational, charitable, and eleemosynary groups.” Abington School Dist. v. Schempp, 374 U.S. 203, 301 (1963) (concurring opinion).
132 Walz v. Tax Comm’n, 397 U.S. 664 (1970) . Justice Douglas dissented.
133 Id. at 672–74.
134 Supra, p.973.
135 397U.S. at 674–76 397U.S. at 674–76.
136 For example, the Court subsequently accepted for review a case concerning property tax exemption for church property used as a commercial parking lot, but state law was changed, denying exemption for purely commercial property and requiring a pro rata exemption for mixed use, and the Court remanded so that the change in the law could be considered. Differderfer v. Central Baptist Church, 404 U.S. 412 (1972) .
137 Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) .
138 Jimmy Swaggart Ministries v. California Bd. of Equalization, 493 U.S. 378 (1990) . Similarly, there is no constitutional impediment to straightforward application of 26 U.S.C. Sec. 170 to disallow a charitable contribution for payments to a church found to represent a reciprocal exchange rather than a contribution or gift. Hernandez v. Commissioner, 490 U.S. 680 (1989) .

Supplement Footnotes

49 120S. Ct. 2266 (2000).
50 Lamb’s Chapel v. Center Moriches Sch. 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.
51 Rosenberger v. University of Virginia, 515 U.S. 819, 824 (1995) .
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