Chapter 4
Religious Liberty and
Church-State Relations
CHAPTER OUTLINE
I. INTRODUCTION
II. INTERPRETIVE FOUNDATIONS OF THE RELIGION CLAUSES
A. The Incorporation of the Religious Clauses
B. What Constitutes Religion for First Amendment Purposes?
2. A Working Definition of Religion
III. RELIGIOUS BELIEF AND THE RIGHT TO PROSELYTIZE
A. Religious Solicitation
B. Time, Place, and Manner Regulations
IV. UNCONVENTIONAL RELIGIOUS PRACTICES
A. The Mormon Polygamy Case
B. The Warren Court Establishes the Compelling Interest Test
C. The Oregon Peyote Case
V. PATRIOTIC RITUALS AND CIVIC DUTIES
A. The Flag Salute Cases
B. Free Exercise of Religion and Military Service
VI. FREEDOM OF RELIGION VERSUS PARENS PATRIAE
A. Compulsory School Attendance
VII. SEPARATION OF CHURCH AND STATE
A. Competing Interpretations of the Establishment Clause
B. The Lemon Test
VIII. RELIGION AND PUBLIC EDUCATION
A. Released-Time Programs and Equal Access Policies
B. Government Efforts to Assist Religious Schools
IX. GOVERNMENTAL AFFIRMATIONS OF RELIGIOUS BELIEF
A. Religious Displays on Public Property
CRITICAL THINKING QUESTIONS
1. Does the Supreme Court’s refusal to extend the protection of the Free Exercise Clause
to the sacramental use of peyote by members of the Native American Church mean
that the Court, or the Constitution, is culturally biased in favor of traditional Judeo-
Christian religions?
2. Does a policy of strict separation of religion and government imply that government is
hostile toward religion or merely neutral on the matter?
3. Doesn’t the term free exercise of religion imply the right to engage in behavior that
society considers to be unconventional or even immoral, as long as the conduct is
engaged in freely and is based on sincere religious beliefs?
4. By what reasoning is the injunction “Congress shall make no law respecting an
establishment of religion” held to prohibit a nonsectarian prayer at a public school
graduation ceremony?
5. Would a state policy of providing parents with tuition vouchers that can be redeemed at
all accredited schools, including sectarian ones, violate the Establishment Clause? Clarify
6. Is the phrase “under God” in the Pledge of Allegiance violative of the Establishment
Clause of the First Amendment? Does the same rationale apply to mentions of God on
United States currency? Why or why not?
7. Could the state’s prerogative of granting a property tax exemption to religious sects be
confined to those existing in the United States at the time of the ratification of the
First Amendment?
8. Can a parent’s religious beliefs serve as a basis for barring the state from requiring medical
treatment of his or her child for the purpose of remedying a non-life–threatening condition?
9. Does the Supreme Court’s constitutional objection to student prayers at high school
football games apply to student prayers at college athletic events?
10. Could a child of twelve, acting independently of his or her parents, sell religious literature
on the public streets in violation of child labor laws?
11. Explain why, in your opinion, so many controversies surrounding the Establishment
Clause come from our nation’s public schools. Has the Court treated the First
Amendment differently in schools than other areas of life? In your opinion should such a
distinction be made?
12. May oaths of public office contain reference to a higher power. Does the constitution
tolerate swearing an allegiance to duty “under God” or “with God as a witness?” Could
one cite Supreme Court precedent of upholding the historical value of such oaths?
popular or more controversial religions? And if so, wouldn’t that seem to indicate a
government favoring one religion over another?
LECTURE LAUNCHERS
How to Discuss the First Amendment Freedom of Religion with Students.
After the instructor has introduced the basic concepts under the free exercise of religion and
establishment clauses to the students, one way to give the students an opportunity to think about
their implications is to discuss the United States Supreme Court’s holding in Christian Legal
Society Chapter of the University of California, Hastings College of Law v. Martinez (2010).
Hastings College of law extends official recognition to student organizations through its
Registered Student Organization Program. Organizations that are so recognized receive certain
benefits including “use of school funds, facilities, channels of communication, and use of
In the fall of 2004, students at the Hastings College of Law formed the Christian Legal Society “by
affiliating with a national Christian association that charters student chapters at law schools
throughout the country. These chapters must adopt bylaws that require members and officers to sign
a ‘Statement of Faith’ and to conduct their lives in accord with prescribed principles. Among those
tenets is the belief that sexual activity should not occur outside of marriage between a man and a
woman. The Christian Legal Society interprets its bylaws to exclude from affiliation anyone who
engages in ‘unrepentant homosexual conduct’ or holds religious convictions different from those in
the Statement of Faith.” The school “rejected the Christian Legal Society’s application for
recognized student organization status on the ground that the group’s bylaws did not comply with
Hastings’ open-access policy because they excluded students based on religion and sexual
Does Promoting Religious Freedom Internationally Violate the First Amendment?
In this chapter students learned about the exact legal definitions of the Free Exercise Clause and
the Establishment Clause and how the Supreme Court has interpreted those since the 1940s.
one that is studied in great detail. Yet, less examined is the matter of the relationship between the
United States government and religion around the world. Should the United States spread its
message of religious freedom as part of its foreign policy objectives?
Yet should this be a part of U.S. foreign policy? Instructors will wish to point out some information
to students by way of introducing the debate. Supporters suggest that as a world leader that has
benefited because of religious toleration it is the duty of the United States to see it implemented
elsewhere. They also point to strong human rights violations that often take place related to religious
persecution. However critics counter that imposing U.S. values related to the relationship between
church and state is itself religiously intolerant. They argue that not all nations value a separation of
church and state and that such a preference is legitimate in many countries.
Ask students to consider the pros and cons of such a policy. In what circumstances should the
United States encourage religious freedom internationally? Are there any situations in which the
United States should not do so?
HYPOTHETICAL PROBLEM (FOR CLASSROOM
DISCUSSION OR ESSAY EXAMINATION)
Responding to widespread criticism of the “increasingly poor performance of American high
school students in science and mathematics,” Congress passed and the President signed the
Improved Performance in Science and Mathematics Act (IPSMA) of 2014. This law required
that, as a minimum, all public high school students in the United States pass national standardized
tests in the basic life sciences and first year algebra as prerequisites to graduation. Congress
mandated, among other things, that the life sciences test include a section on “intelligent design.”
The law specifically directed the National Association of Biology Teachers and the National
Council for Teachers of Mathematics to prepare the standardized tests. The statute further
KEY TERMS
Religion Clauses of the First The Establishment Clause and Free Exercise Clause of the First
Amendment Amendment.
school prayer Various activities of a religious nature in the public schools.
Free Exercise Clause Clause in the First Amendment prohibiting Congress from
abridging the free exercise of religion.
Establishment Clause Clause in the First Amendment prohibiting Congress from
enacting laws “respecting an establishment of religion.”
conscientious objector One who opposes military service on religious or moral grounds.
religious speech Expression of a religious nature.
expressive religious conduct Conduct undertaken to express a religious message.
public forum A public space generally acknowledged as appropriate for public
assemblies or expressions of views.
time, place, and manner Reasonable government regulations as to the time, place, and
regulations manner of expressive activities protected by the Constitution.
unconventional religious Practices outside the religious mainstream.
practices
Religious Freedom Act of Congress designed to enhance religious freedom vis-à-vis
Restoration Act (RFRA) government; declared unconstitutional by the Supreme Court in
1997.
parens patriae “The parent of the country.” Term referring to the role of the
state as guardian of minors or other legally disabled persons.
right to refuse medical The right of a patient or patient’s surrogate in some instances to
treatment refuse to allow doctors to perform medical treatment.
released-time programs Public school programs in which students are permitted to leave
school grounds to attend religious exercises.
equal access Policies that permit religious and secular groups the same access
to public buildings for purposes of meetings.
school prayer decisions Collective term for the Supreme Court’s decisions of the 1960s
secular humanism The philosophy that man, not God, is the source of standards of
right and wrong.
strict neutrality The doctrine that government must be strictly neutral on matters
of religion.
Sunday closing laws Laws, now largely defunct, prohibiting business from opening on
required to pay certain taxes.
tuition tax credits Vouchers that taxpayers may “spend” at schools of their choice,
be they public or private.
INSTRUCTOR RESOURCES
Bellah, Robert, Richard Madsen, William Sullivan, Ann Swidler, and Steven M. Tipton. The Good
Supreme Court. NY: Penguin Books, 1990. See, in particular, Chapters 1, 7, 9, and 15.
Kauper, Paul. Religion and the Constitution. Baton Rouge: Louisiana State University Press, 1964.
Levy, Leonard. The Establishment Clause: Religion and the First Amendment. NY:
Macmillan, 1986. Manwaring, David. Render unto Caesar: The Flag Salute Controversy.
Chicago,IL: University of Chicago Press, 1962.
NOTES ON EXCERPTED CASES
WEST VIRGINIA STATE BOARD OF EDUCATION v. BARNETTE (1943).
Walter Barnette and two other Jehovah’s Witnesses, all of whom had children in the public
schools, filed suit to enjoin school officials from requiring their children to participate in a daily
flag salute ceremony. According to their religious beliefs, the flag salute constituted worship of a
WISCONSIN v. YODER (1972).
Yoder and other members of the Old Order Amish religion were convicted of violating a state law
requiring school attendance through age sixteen. The Amish argued that sending their children to
school beyond the eighth grade would be psychologically and spiritually damaging to them and
would ultimately have a destructive effect on their tight-knit community. On appeal, the Supreme
Court held that the compulsory school attendance law as applied to the Amish was in violation of
the Free Exercise Clause. Writing for the Court, Chief Justice Burger reasoned that the state had
incorrectly assumed the Amish children would suffer from leaving the school system. The
opinion detailed the success of the Amish communities in producing self-sufficient, law abiding
citizens. Thus, Burger noted, the state had no reason to infringe upon a legitimate religious belief
protected by the First Amendment.
EMPLOYMENT DIVISION v. SMITH (1990).
Two members of the Native American Church, Alfred Smith and Galen Black, worked as drug
rehabilitation counselors for a private social service agency in Oregon. Along with other church
members, Smith and Black ingested peyote, a hallucinogenic drug, at a sacramental ceremony
practiced by Native Americans for hundreds of years. Citing their use of peyote as “job-related
misconduct,” the social service agency fired Smith and Black. On review, the Supreme Court
rejected the claim that the ritualistic use of peyote was protected as free exercise of religion. In
the view of Justice Scalia, “if prohibiting the exercise of religion … is … merely the incidental
CHURCH OF THE LUKUMI BABALU AYE, INC. v. CITY OF HIALEAH (1993).
In this case the Court considered a city ordinance that made it a crime to “unnecessarily kill,
torment, torture, or mutilate an animal in a public or private ritual or ceremony not for the
primary purpose of food consumption.” Practitioners of the Santeria religion, which involves
EVERSON v. BOARD OF EDUCATION (1947).
A New Jersey statute authorized school boards to make rules for the transportation of children to
and from schools. A local board opted to reimburse parents of children in non-profit, private
schools for costs they incurred transporting their children to school. A number of the recipients of
these benefits were parents whose children attended Catholic schools. Everson, a taxpayer,
brought suit to challenge this policy, claiming that it violated the Establishment Clause. While
ABINGTON SCHOOL DISTRICT v. SCHEMPP (1963).
Edward and Sidney Schempp, members of the Unitarian faith, brought suit to challenge the daily
practice of prayer and Bible reading at Abington Senior High School. In an eight–to-one decision,
the Supreme Court upheld their position, saying that public schools, as agencies of the state, must
WALLACE v. JAFFREE (1985).
Ishmael Jaffree brought suit against Alabama Governor George Wallace and other public officials
to challenge the constitutionality of the state “moment of silence” law. Specifically, the statute
provided: “At the commencement of the first class each day in the first through the sixth grades in
all public schools, … a period of silence, not to exceed one minute in duration, shall be observed
for meditation or voluntary prayer.” The Supreme Court, splitting six–to-three, invalidated the
SANTA FE INDEPENDENT SCHOOL DISTRICT v. DOE (2000).
In this case, the Supreme Court considered an Establishment Clause challenge to a practice at a
public high school in Texas in which a student delivers prayers over the PA system before
football games. The District Court upheld the practice on the condition that the school would
permit only “nonsectarian, nonproselytizing prayer.” However, the Court of Appeals held that the
challenged practice was unconstitutional, even as modified by the District Court. In a 6–3
EDWARDS v. AGUILLARD (1987).
Parents of children attending public schools in Louisiana brought suit to challenge the
constitutionality of the State’s “Balanced Treatment for Creation-Science and Evolution-Science
in Public School Instruction” Act. The Act forbade the teaching of the theory of evolution unless
accompanied by instruction in “creation science.” The District Court invalidated the law as a
AGOSTINI v. FELTON (1997).
In an important Establishment Clause case the Court overruled its controversial 1985 decision in
Aguilar v. Felton and corresponding portions of a companion case, School District of Grand
Rapids v. Ball. In Aguilar a bare majority of the justices had held that under the Establishment
Clause New York City was prohibited from placing public school teachers in parochial schools
for the purpose of providing federally financed remedial courses to disadvantaged students. At
MARSH v. CHAMBERS (1983).
The question in this case was the constitutionality of the Nebraska legislature’s longstanding
practice of opening each legislative day with a prayer offered by a chaplain paid with public
money. Dividing 6–3, the Supreme Court upheld the practice. Chief Justice Burger’s majority
opinion stressed the weight of historical practice and the intentions of the Framer’s of the Bill of
Rights. Relying less on the Lemon test and more on political and legislative tradition, Burger took
special note of the fact the same Congress that adopted the Bill of Rights also provided for a paid
MCCREARY COUNTY v. ACLU (2005) AND VAN ORDEN v. PERRY (2005).
The Court announced its ruling in these cases on the same date, June 27, 2013. Both
cases involved the public display of the Ten Commandments, which was challenged as a
violation of the Establishment Clause. In McCreary County v. ACLU, the Court struck
down such displays in two Kentucky courthouses. But in Van Orden v. Perry, the Court
upheld a monument bearing the inscription of the Ten Commandments on the grounds of
the Texas statehouse. Both cases were decided by narrow five-to-four votes. Of course,
WALZ v. TAX COMMISSION (1970).
Walz, a property owner in Richmond County, New York, brought suit in the New York state
courts to prevent the New York City Tax Commission from granting property tax exemptions to
churches. Walz contended that the exemptions, which were specifically authorized by the state
constitution, required him and other taxpayers to indirectly subsidize religious bodies. The trial
court summarily dismissed the complaint and the state appellate courts affirmed. On appeal, the
ZELMAN v. SIMMONS-HARRIS (2002).
Here the Supreme Court upheld a “voucher” program established by the state of Ohio for the
Cleveland school district. Under the program parents could redeem the vouchers at all accredited
schools, including parochial schools. Chief Justice Rehnquist’s opinion for the sharply divided
Court concluded that the Cleveland voucher program was “entirely neutral with respect to