Religion and American Law I Religion and the

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Religion and American Law I. Religion and the Constitution A. Refers nowhere to _____.

Religion and American Law I. Religion and the Constitution A. Refers nowhere to _____. When Hamilton was asked why God was not invoked in the preamble, he replied “We forgot it. ” Why the failure to include God in the Constitution? B. Federalism: most at the time viewed the states as the primary unit of political community. Therefore, the framers left religious matters to state constitutions. Most state constitutions had establishments and many even into the 19 th century had constitutionally endorsed Christianity and even particular denominations. But even at the national level, it is not clear what disestablishment means, as we will see. Could just be new respect for religious pluralism/diversity and nothing more. C. The constitution mentions religion, however, in a few ways: 1. Article ____: Ban on religious tests for public office: some think this was an intention to keep religious observers out of public office, others think it is to protect religious observers when they are in public office (rights of conscience and keeping nonpreferentialism). 2. Sunday exception clause: Article I, Section 7: does not count Sunday against the President with respect to the ______ (10 days to consider a bill)

3. Dated as “in the Year of our Lord” II. How much information did

3. Dated as “in the Year of our Lord” II. How much information did the Framers receive from religion or Christianity when constructing and thinking of the constitution and American politics? – Constitutionalism: Fusion of Puritan compact theory (Mayflower, colonial charters) and Secular Enlightenment Contract theories (a Hybrid) – View of _________: Historian Sydney Ahlstrom “the Federalist Papers as well as John Adams’s defenses of the American constitutions, can be read as Puritan contributions to Enlightenment political theory” (1972, 363). As James Madison said, “If all men were angels no government would be ______. If angels were to govern men, neither external nor internal controls on government would be necessary. ” – Role of Religion: “necessary” or at least “helpful” to civic virtue, the foundation of American social/political success (possible exception of Madison). Washington called the claim that “morality can be maintained without religion” as a

mere “supposition. ” Adams said simply “Our Constitution was made only for a moral

mere “supposition. ” Adams said simply “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other. But Madison argued that social order might be sustained simply through the right combination of institutional checks and balances and separation of powers. But the consensus of giving religion an important even necessary role to sustaining the country “virtually invited churches to become the institutional defenders of justice and the moral law in politics. ” And they have done just that from defending the _______ against treaty violations, to abolition, to Civil Rights, helping the poor and feeding the hungry, abortion, etc. – General consensus, to practically all the Framers, Reason and Religion (Revelation) were either handmaidens to the other in some order. But they were both needed to maintain virtue and morality in society. Some people might be able to depend upon Reason alone (as Franklin argued to Paine), but most others needed Religion (Witherspoon and Henry). Basically, they supported the promotion of Civil Religion (formal and gov’t acknowledgement of God in both official and unofficial capacities).

II. The 1 st amendment and religion: “Congress shall make no law respecting an

II. The 1 st amendment and religion: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. ” A. History of the Establishment Clause (692) • • ______ penned it and wanted the First Congress to restrict both states and Congress from respecting an establishment of religion. His attempt failed House version read “Congress shall make no law establishing articles of faith or a _____ of worship, or prohibiting the free exercise of religion. ” Would’ve allowed Congress to fund religion in general. HR and Senate compromise became final and current version after conference committee chaired by Madison. But what is “respecting” and what is “no law” and what is “establishment” and how is it balanced against “free exercise”?

B. Establishment clause views: • Accommodation or nonpreferentialism – Constitution only forbids government endorsement

B. Establishment clause views: • Accommodation or nonpreferentialism – Constitution only forbids government endorsement of particular religions or denominations. It is permissible, perhaps laudable, to take steps in government to promote religious proliferation. Henry and Rehnquist • Strict separation and strict neutrality – Constitution forbids all ________ or support of particular religions, religious institutions, or religion in general. Law must have a secular purpose and any aid must be completely incidental. Black • Positive neutrality – government must not discriminate between religions or religion and ________. Stephen Monsma and University of Virginia case

C. Different Courts and different interpretations: • • More or less silent or accommodationist

C. Different Courts and different interpretations: • • More or less silent or accommodationist prior to 1947 Vinson Court: Everson v. Board of Education of Ewing Township (1947). Black wrote the majority opinion and stated that the 1 st amendment erects a high-wall of separation between church and state. He took a strict separation approach (no intentional effort to aid religion in general or particular). The ________ did not think Black went far enough because he actually seemed to allow for laws that knowingly aid religion indirectly. If religion is a classification, the government must refrain from involvement with it (in this case, reimbursing parents for costs of busing to religious schools). Favored ______ test. Warren Court moved towards strict neutrality (no aid test or strict neutrality). Burger and Rehnquist moved more towards an accommodationist approach. Both ruled that government could not __________ against religious organization’s use of school facilities, for example.

IV. Cases and tests • Schemp test: two part 1) secular purpose 2) primary

IV. Cases and tests • Schemp test: two part 1) secular purpose 2) primary effect neither ________ nor inhibits religion. Came from case in 1963. Discuss Engel v. Vital (1962). • Used to overturn AR law forbidding teaching evolution in Epperson v. Arkansas (1968). • Then Burger was appointed and takes over as Chief and modifies the Schemp test so as to make governmental accommodation more _______ (adds “excessive government entanglement with religion” as the third prong). Discuss Lemon v. Kurtzman (1971). On its face, appeared to be more permissive of accommodation, but the entanglement requirement served only to confuse things (inherent contradiction: cases turned on the degree of entanglement and case facts; prong two requires the gov’t not to advance or inhibit religion by __________ their policies/programs for religious activities, but that would violate prong three’s excessive entanglement). Lemon was so ambiguously applied that the court became divided over clearer & consistent positions of accommodation verses strict separation again. Sometimes it is used, other times not even mentioned, other times it is used by some justices and not by others in the same case, and other times it is applied with different results in the same case by different justices!

 • In Wallace v. Jaffree (1985: AL moment of silence), criticism of the

• In Wallace v. Jaffree (1985: AL moment of silence), criticism of the test was evident when Stevens halfheartedly uses Lemon, but O’Conner, Burger, and Rehnquist criticize it. O’Conner “_____________. ” • Edwards v. Aguillard (1987). How was Lemon used here? • Lee v. Weisman (1992) – court ruled that prayer at graduation is unconstitutional (establishment). Explicitly refused to throw out the Lemon test here, despite the dissenters objections. The Rehnquist court continues to apply it, but still ambiguously and selectively. • As a result, some religious groups have begun suing on the basis that when the government does not benefit them, they are being denied equal treatment and their free speech is denied. Rosenberger v. The Rector of Visitors of the University of Virginia (1995). Interesting situation where the court approves perhaps for the first time _______ for religious activities. Here, Kennedy and majority conclude that when UVA opened a forum to all viewpoints except religious ones, it violated free speech (engaged in viewpoint discrimination rather than content-based discrimination) and would not violate establishment by funding indiscriminately religious as well as non-religious student publications equally.

Dissenters said it was not viewpoint discrimination since Christianity was not the only religion

Dissenters said it was not viewpoint discrimination since Christianity was not the only religion singled out. Further, it is establishment since the question in previous cases was not whether religion was treated equally with other worldviews, but whether any benefits to religion were incidental when the state attempts to fund with a secular purpose and tries to keep the sectarian and secular activities separate. • Signal: Positive Neutrality (but Lemon still not overturned)? The Rehnquist court generally overturned previous decisions in two cases Agostini v. Felton (1997) and Mitchell v. Helms (2000). Both allowed gov’t to fund private religious schools for educational purposes. “The New York program under which public school teachers were sent into parochial schools did not provide parochial schools with any incentive, financial or other, to establish religion in order to attract public school teachers. ” The Court added that under its new view, only those policies which generate an _____________ between church and state will be deemed to violate the Establishment Clause. As such, one should no longer find that all entanglements between church and state have a distinctly positive or negative impact on religion. ” In Mitchell, Justice Thomas wrote, "[i]f the religious, irreligious, and areligious are all alike eligible for governmental aid, no one would conclude that any indoctrination that any particular recipient conducts has been done at the behest of the government. "

V. Conclusion A. Summary of Establishment Clause jurisprudence 1. Confusion (read p. 234 in

V. Conclusion A. Summary of Establishment Clause jurisprudence 1. Confusion (read p. 234 in Fowler). 2. Case in point? The Public Display of the ________ In Van Orden v. Perry (2005; involving a statue on state capitol grounds) and Mc. Creary County vs ACLU (2005; involving displays on walls of two state courthouses in KY), the court split opposite ways. Both decisions were 5 -4, with Stephen Breyer as the swing voter. One side said they were both unconstitutional because they involved an active government endorsement of either religion in general or particular religions (no secular purpose: "This is no time to deny the prudence of understanding the [First Amendment] to require the Government to stay neutral on religious belief, which is reserved for the conscience of the individual. " from _______ opinion). The other said that government is permitted to recognize, at least passively if not favorably, religion in general, certainly as a _________ foundation of civil law in America (“the Ten Commandments have an undeniable historical meaning. . Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the

For Breyer, the historical and contextual difference between the displays was very important. He

For Breyer, the historical and contextual difference between the displays was very important. He argued that one was _____ years old and erected with only secular fanfare amidst several other foundation of law displays. The other was only about 10 years old and was celebrated with religious fanfare. It was displayed exclusively. Prescription for lawmakers? Disguise your purposes; you can publicly display that which is religious, but you can’t publicly ______ that which is religious. Discussion: How would the Framers have felt about this case? Does it matter? Reaction B. Current issues in Establishment (court wants to balance state activities that are seen as establishing religion in schools and those that benefit children) 1. Zelman v. Simmons-Harris (2002): though ___% of students who opted for school choice program enrolled in religious schools, court ruled that it was constitutional since _______ and not the government was directing funds. 2. Locke v Davey (2004): Keep this one in mind for the next chapter on Free Exercise

TX U. S. Supreme Court

TX U. S. Supreme Court