Ed.518Legal Presentation

Tim Kern

“Congress Shall Make No Law Respecting An Establishment of Religion”

Separation of church and state is a political and legal doctrine that government and religious institutions are to be kept separate and independent from each other.

The phrase separation of church and state is generally traced to the letter written by Thomas Jefferson in 1802 to the Danbury Baptists, in which he referred to the First Amendment of the United States Constitution as creating a "wall of separation" between church and state. The US Supreme Court quoted the phrase for the first time in 1878, and then in a series of cases starting in 1948.

This started to become a general term

Bellamy's original Pledge read, "I Pledge Allegiance to my Flag and the Republic for which it stands, one nation indivisible with liberty and justice for all.” – 1892

In 1923 the National Flag Conference called for the words “my Flag” to be changed to “the Flag of the United States”.

Not until 1954 was “under God” added Some say in response to Communism

During the "McCarthyism"

Jehovah's Witnesses were expelled for refusing to say the Pledge

Claimed it was idolism

Court said: Yep, Kick um’ out. The pledge was a point of national security Designed "to promote in the minds of children who

attend the common schools an attachment to the institutions of their country.”

Increased persecution of JW

Jehovah's Witnesses Same issue, idolism

The Court said: Ah, We Changed our Minds Overturned Minersville School District v.

Gobitis Not on religious ground, but on freedom of

speech grounds. No more mandatory pledges

Michael Newdow was an atheist The whole “under God” problem CA District Court found Newdow had no

standing Did not have custody of the child in question

Ninth Circuit found for Newdow Has standing “Under God” was an endorsement of religion

Supreme Court said: Not It! Side stepped the religious issue Found Newdow had no standing

Giving students time within the school day for religious studies

Champaign, Illinois – 1940 Gave students release time for religious

studies Taught by religious leaders in public

school

Court said: Nope, Can’t Do It Even though the courses were “Voluntary” the

court found evidence of “coercion” Endorsed one religion over others

New York State Ed. Law #3210 Makes school attendance mandatory Allows districts to give release time to go to

religious classes off public campuses (with written parental consent)

Court said: Yep, This one’s OK No coercion Off school grounds Not endorsed by public officials

Didn’t really overturn McCollum v. Board

New Hyde Park, New York Mandatory school prayer

"Almighty God, we acknowledge our dependence upon Thee, and beg Thy blessings upon us, our teachers, and our country.”

“Voluntarily” said at the start of every school day

Court said: Nope, no good. Neither the prayer's nondenominational

character nor its voluntary character saves it from unconstitutionality

Abington (Philly Area) began every day with a Bible reading.

Mr. Schempp thought this violated his 1st amendment rights

The Court said: Find another book to read The state cannot force a person “to profess a

belief or disbelief in any religion” Once again this is a case of the State

“sponsoring” a religion over non-religion or one religion over another”

This case and ENGEL v. VITALE set off a fire storm of public protest

Life magazine declared Madalyn Murphy O’Hair, the mother of the plaintiff, in one of the cases, "the most hated woman in America."

Alabama law allows public school teachers to start a day with 1 minute of silent meditation or individual prayer

Teachers sometimes asked students to recite some prayers

Jaffree was the parent of 3 students in Mobile Alabama Claimed this practice violated the 1st

Amendment

The Court said: Nope, Can’t do it. The State's endorsement, by enactment of 16-

1-20.1, of prayer activities at the beginning of each school day is not consistent with the established principle that the government must pursue a course of complete neutrality toward religion.

Still hinges on official endorsement by school officials

This case involves graduation prayers at commencement School invited a rabbi to speak at a middle

school ceremony Totally voluntary participation

The Court said: No, this doesn’t work Held that government involvement in this

case creates "a state-sponsored and state-directed religious exercise in a public school."

Two laws in question PA and Rhode Island

Both states allowed public funding to reimburse private schools for the cost of teaching non-religious courses. Textbooks Teacher salaries Etc.

The Courts said: No Good. Held that the Act fostered "excessive

entanglement" between government and religion

Produced the Lemon Test Details the requirements for legislation

concerning religion that is still used today It consists of three prongs:

The government's action must have a secular legislative purpose

The government's action must not have the primary effect of either advancing or inhibiting religion

The government's action must not result in an "excessive government entanglement" with religion

Religious Choral Music Allowed, found not to be an endorsement by

officials Use of Facilities

More of a Free Speech issue If you open to one group you open to all

groups Textbook Content

Evolution v. Creationism