Dissenting (Jackson):
Dissenting (Rutledge, Frankfurter, Jackson, and Burton):
School District of Abington Township v. Schempp (1963)
Relevant Case Facts:
The Schempps were members of a Unitarian church where they regularly attended services.
However, they did not want their children to engage in bible reading at their public school.
Pennsylvania law mandated that “at least ten verses from the Holy Bible shall be read, without
comment, at the opening of each public school on each school day.” The reading of the Lord’s
Prayer followed the Bible verses at Abington High. Those students who did not want to
participate could leave the room.
Legal Question: Does the reading of the Bible and the Lord’s Prayer in a public violate the
Establishment Clause of the 1st Amendment?
Reasoning:
Concurring (Douglas):
Concurring (Brennan):
Concurring (Goldberg and Harlan):
Dissenting (Stewart):
Lemon v. Kurtzman, Earley v. DiCenso (1971)
Relevant Case Facts:
Lemon brought suit against the Pennsylvania state superintendent. He wanted the court to declare
unconstitutional a Pennsylvania law that authorized Kurtzman to “purchase” secular educational
services from nonpublic schools. He would use state taxes levied on cigarettes to reimburse
nonpublic schools for expenses incurred for teachers’ salaries, textbooks, and instructional
materials. There were restrictions: only secular expenses could be paid, including secular books
and teachers’ salaries for the same course taught in public schools. To receive payments schools
had to keep separate records for secular and nonsecular expenses.
The Rhode Island Salary Supplement Act supplemented salaries of teachers of secular subjects in
private elementary schools up to 15 percent of their current salaries, with the restriction that
payments were only made to those who agreed, in writing, not to teach religious subjects.
Legal Question: Does the reimbursing of nonpublic schools for teachers and secular education
violate the establishment clause?
Reasoning:
5.
Agostini v. Felton (1997) Case has been Cut but you might want to leave brief for instructors
Relevant Case Facts:
Title I of the Elementary and Secondary Education Act of 1965 funds services for students at risk
of academic failure in both public and private schools. The policy included sending teachers to
private schools with strict instructions to maintain the secular purposes of the program. It was
struck down in Aguilar v. Felton as a violation of the establishment clause. As such, New York
changed its plan by leasing vans. Teachers then drove them to public areas outside of private
schools where they provided services for eligible students. Between 1986 and 1993 New York
spent more than $100 million on this program. New York City and parents of private school kids
sued, arguing that the program was unreasonably expensive.
Legal Question: Have the Court’s establishment clause cases since Aguilar so undermined it
that it is no longer good law?
Reasoning:
Dissenting (Souter, Stevens, and Ginsburg, with Breyer on Part II):
Zelman v. Simmons-Harris (2002)
Relevant Case Facts:
The Cleveland school district faced a crisis, as studies found it to be one of the worst performing
districts in the country. It failed to meet 18 state standards, only 10 percent of 9th graders passed
proficiency exams, and more than 2/3s dropped out before graduation. To improve performance
it set up a scholarship program where by students could stay in the Cleveland schools, receive a
scholarship to go to a nonreligious private school, a scholarship for a private school, stay in the
district at receive $500 in tutorial assistance, or attend a public school outside the district.
Simmons-Harris sued, charging that the voucher program violated the First Amendment’s
Establishment clause because 80 percent of the private schools available were religious, and over
96 percent of students used their vouchers at private schools.
Legal Question: Does the Cleveland voucher program offend the Establishment Clause of the
Constitution?
Reasoning:
Concurring (Thomas):
Concurring (O’Connor):
Dissenting (Breyer, Stevens, and Souter):
Dissenting (Souter, Stevens, Ginsburg, and Breyer):
Dissenting (Stevens):
Edwards v. Aguillard (1988)
Relevant Case Facts:
Louisiana enacted the Balanced Treatment for Creation-Science and Evolution-Science in Public
School Instruction Act of 1981. The law differed from the law in Epperson because it did not
outlaw the teaching of evolution. Rather, it prohibited schools from teaching evolution without
also teaching creationism.
Legal Question: Does forcing teachers who teach evolution to also teach creationism violate the
Establishment Clause?
Reasoning:
Dissenting (Scalia and Rehnquist):
Town of Greece v. Galloway (2014)
Relevant Case Facts: Beginning in 1999, the town board of Greece, NY began having clergy
recite a prayer at the beginning of its monthly meetings. The purpose of the prayer was to give
the proceedings a solemn and deliberative tone and to invoke divine guidance. Any clergy,
including atheists could participate without pay and a town employee contacted all congregations
in town for volunteers. Because of the composition of these congregations, all prayers ended up
being from the Christian perspective. The town made no effort to promote diversity. Galloway
attended meetings and objected to the Christian themed prayers as an affront to diversity. While
the city then invited a Jewish layman and a member of the Baha’i faith, and accepted the offer of
a Wiccan priestess to pray, Galloway sued on the grounds that these sectarian prayers violated
the establishment clause and that future prayers should only be ecumenical and inclusive.
Legal Question: Has the town of Greece, New York, imposed an impermissible establishment
of religion by opening its monthly board meetings with a prayer.
Reasoning:
Thomas and Scalia concurring in part and in the judgment
Alito and Scalia Concurring
Kagan, Ginsburg, Breyer, and Sotomayor, dissenting
Breyer dissenting
Lee v. Weisman (1992) CUT BRIEF BUT MIGHT WANT TO KEEP FOR INSTUCTORS
Relevant Case Facts:
Each year Nathan Bishop Middle School held formal graduation ceremonies on the school
grounds. Attendance was voluntary. There had been a practice of inviting local clergy to give
invocations and benedictions at the middle and high school graduation ceremonies. The clergy
who participated were given a pamphlet on giving nonsectarian prayers. In 1989 a rabbi agreed
to participate in the ceremonies, and the Weisman’s sued because they argued such participation
violated the 1st Amendment.
Legal Question: Do religious invocations and benedictions during a public school graduation
ceremony violate the Establishment Clause of the 1st Amendment?
Reasoning:
Concurring (Blackmun, Stevens, and O’Connor):
There can be no doubt that government is advancing an promoting religion as it composed
Concurring (Souter, Stevens, and O’Connor):
Dissenting (Scalia, Rehnquist, White, and Thomas):
Van Orden v. Perry (2005)
Relevant Case Facts: The twenty two acre park surrounding the Texas Capitol contains 17
monuments and 21 historical markers commemorating the “people, ideals, and events that
compose Texas identity.” Among the monuments was a 6-foot high monument of the 10
commandments. Van Orden, who frequently walked through the park over the course of a
number of years, filed suit against Governor Rick Perry asking for the removal of the 10
commandments monument because its presence on the capitol grounds violated the
establishment clause.
Legal Question: Does the Establishment Clause allow the display of a monument inscribed with
the Ten Commandments on the Texas State Capitol grounds?
Reasoning:
Dissents/Concurrences:
Concurring (Scalia):
There is nothing unconstitutional about a state favoring religion generally, honoring God through
public prayer, or venerating (without proselytizing) the Ten Commandments.
Concurring (Thomas):
Concurring in the judgment (Breyer):
Dissenting (Stevens, with Ginsburg):
Dissenting (Souter, with Stevens and Ginsburg):
Hosanna-Tabor Evangelical
Lutheran
Church and School v. Equal
Employment
Opportunity
Commission
565 U.S. (2012)
Relevant Case Fact:
Hosanna-Tabor Evangelical Lutheran Church operates a small school offering a “Christ-centered
education” for children in kindergarten through eighth grade. Its teachers may “called,” which
means they were invited to their vocation by God through a congregation and therefore deemed
ministers. Alternatively, the school hires “lay” teachers which means they are not deemed
ministers. Cheryl Perich began at Hosanna-Tabor as a lay teacher but was soon called.
Unfortunately, she took a leave of absence for narcolepsy, and when she came back was asked to
resign. She refused and threatened to sue, at which but the church terminated her contract. Perich
filed a claim with the EEOC, claiming her dismissal was retaliation for having made the claim.
Ultimately, Perich, in conjunction with the EEOC filed suit against the church for violating the
American with Disabilities Act.
Issue: Do the Establishment and Free Exercise Clauses of the First Amendment bar employees
who have been wrongfully terminated to sue their employers for reinstatement and damages
when the employer is a religious group and the employee is one of the group’s ministers?
Reason:
