Zorach Questions and Hypos

 The Court says that the 1A "studiously defines the manner, the specific ways, in which" Church and State shall be kept separate. Where is that studious and specific list? Does the 1A even mention the idea of separation of church and state?

Now consider four different "time release" programs plus one more example of accommodation.

1. The one in Zorach, in which students (whose parents request) are released from one class per week to attend a religious program of their choice.

2. A Jewish student is granted an excused absence to observe Yom Kippur or a similar holy day.

3. A Catholic student's parents request that he or she be excused from a "mandatory assembly" on "safe sex" and STDs.

4. During Ramadan, a holy month of fasting and prayer for Muslims, NYC public schools release Muslim students from classes for 10 minutes per day and allow them to go to an empty classroom for communal prayer.

5. Recently, NYC public schools installed "foot baths" in rest rooms to accommodate Muslim students who need to wash their feet before prayer during Ramadan. Does this violate the EC?

Do any of these excusals violate the EC? Should they be struck down? Are any of them required by the Free Exercise Clause?

Religious Purpose and Facial vs. As Applied Challenges

In the Santa Fe case, did anyone ever pray or deliver an invocation at a football game? Which prayer? Which invocation? How did the Court know that an unspoken student statement, one that might have had secular content or might have had religious content, was somehow an establishment of religion?

We will never know what would have happened, will we? How did the Court know that some uncertain future expression, of unknown content, somehow constitutes an establishment of religion?

What was the move the Court used to strike down these laws without any record about what in fact might be said or left unsaid?

Notice that the Court's general rule about facial vs. as applied challenges is that facial attacks are disfavored if there is any possible application of a law that would be constitutional. Instead of invalidating a law root and branch, the Court will wait for unconstitutional applications of the law to come before it and will enjoin the unconstitutional applications, while permitting the constitutional applications to be given effect. See United States v. Salerno, 481 U.S. 739, 745 (1987) (a Pl bringing a facial challenge against a law "must establish that no set of circumstances exists under which the Act would be valid").

How does this rule apply in Santa Fe? Should the Court have waited to see how the policy would have been applied?

For more on the Lemon "purpose" prong, see here.

Santa Fe Case

Although there was a history of various types of school prayer in this school district, this case concerns a school policy that allowed students to vote on whether to allow a student to deliver a message, statement or invocation at home football games. P.1702

The issue in this case is whether pregame invocations are speech attributed to the government which is prohibited by the EC, or private student speech which is protected by the Free Speech and Free Exercise Clauses. See p. 1703 “crucial difference....”

How much government involvement do we have here?

‒ School has set up an election process to determine whether a student elected by her classmates may deliver a "message, statement, or invocation" before varsity football games.

‒ Student chosen by the majority gets preferred access to public address system and an audience that has come to participate in a school activity.

‒ The policy “invites and encourages” religious messages. (p. 1704). How so? So what? Liberty interest?

- In this context, the audience at football games “must perceive the pregame message as a public expression of the views of the majority of the student body delivered with the approval of the school administration.” (p. 1705) So what?

‒ endorsement of religion

‒ School sponsorship of a religious message is impermissible. Why? See P. 1705:

"School sponsorship of a religious message is impermissible because it sends the
ancillary message to members of the audience who are nonadherents 'that they are
outsiders, not full members of the political community, and an accompanying message
to adherents that they are insiders, favored members of the political community.'”

What message does the Court's censorship of religious speech send to students whose faith is an important part of their identity?

– government may not use social pressure (to attend a football game) to enforce religious orthodoxy. (p.1706) What social pressure? What religious orthodoxy?


What actually happened at the games? Was any prayer ever said under this policy?

Notice the Court strikes down the policy under a facial challenge, because the purpose of the policy violated the EC – its purpose was to endorse student prayer at football games. (p. 1707).

Why should we think that the school's permitting students to elect a student speaker amounts to an endorsement of religion? Why not view it as an endorsement od the democratic process and of student expression?

County of Allegheny: How they Voted

1. A. Creche Unconstitutional, Menorah Constitutional: Blackmun & O'Connor
2. B. Both Unconstitutional: Stevens, Brennan & Marshall
3. C. Both Constitutional: Kennedy, Scalia, Rehnquist & White
   

Thus, A plus B equals 5-4 decision that the creche is unconstitutional; and A plus C equals 6-3 decision that the menorah is constitutional,

Church, State and the Constitution

As we begin our discussion of the Establishment Clause, I want you to journey back into the recesses of time, back to the days before you were a law student. Go back to your high school and college days, perhaps, and ask yourself "what was the story I was taught about the role of religion in the public square."

Maybe you were told this story in high school, or college. Somewhere you were discussing the subject of, say, a Ten Commandments display in a public park in Corny, Nebraska, and some teacher or speaker told you the story of what the First Amendment says about "church and state."

Think about that story and be prepared to share it with the class.

Allegheny and the "Secular State"

Consider this excerpt from Justice Blackmun's Majority opinion:

The government does not discriminate against any citizen on the basis of the citizen's religious faith if the government is secular in its functions and operations. On the contrary, the Constitution mandates that the government remain secular, rather than affiliate itself with religious beliefs or institutions, precisely in order to avoid discriminating among citizens on the basis of their religious faiths. A secular state, it must be remembered, is not the same as an atheistic or anti-religious state. A secular state establishes neither atheism nor religion as its official creed. Justice Kennedy thus has it exactly backwards when he says that enforcing the Constitution's requirement that government remain secular is a prescription of orthodoxy.

Is a secular state neutral between religious citizens and nonbelievers? Should public displays and memorials reflect the pluralism of a  nation such as ours? Does a public square that contains only non-religious displays truly reflect the religious diversity of our Nation?