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. (p. 1771) 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.

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,

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?