Religious Liberty: Landmark Supreme Court Cases

Reynolds v. United States (1879)
The Court examined whether the federal anti-bigamy statute violated the First Amendment’s Free Exercise Clause, because plural marriage is part of religious practice. It unanimously upheld the federal law banning polygamy, noting that the Free Exercise Clause forbids government from regulating belief, but does allow government to punish activity judged to be criminal, regardless of an activity’s basis in religious belief. (Citation: 98 US 145) BRI e-Lesson Available

Minersville School District v. Gobitis (1940)
The Court looked at whether a Pennsylvania law requiring students in school to salute the United States flag infringed on liberties protected by the First and Fourteenth Amendments. It decided 8-1 in favor of the school policy, ruling that the government could require respect for the flag as a key symbol of national unity and a means of preserving national security. In 1943, the Court reversed this ruling in another case, West Virginia State Board of Education v. Barnette (319 US 624). (Citation: 310 U.S. 586) BRI e-Lesson Available

Cantwell v. Connecticut (1940)
The Court considered whether a Connecticut statute requiring a permit to solicit for religious or charitable purposes violated First Amendment Free Speech or Free Exercise rights. It ruled unanimously against the state, noting that although general regulations on solicitation are legitimate, in allowing local officials to determine which causes were religious and which ones were not and to issue and deny permits accordingly, the state of Connecticut took on the role of determining religious truth-which violated the First and Fourteenth Amendments. The Court also held that the peaceful expression of beliefs is protected by the First Amendment from infringement by not only the federal government, but also by state governments. This was the first time the Court applied the Free Exercise Clause to the states. (Citation: 310 US 296) BRI e-Lesson Available

Everson v. Board of Education (1947)
The Court examined whether a New Jersey law allowing reimbursements to parents who sent their children on buses operated by the public transportation system to public and private schools, including parochial Catholic schools, was indirect aid to religion and thus a violation of the Establishment Clause of the First Amendment. In a 5-4 decision, the Court ruled that the law was constitutional, because the transportation reimbursements were provided to all students regardless of religion. Also, the reimbursements were made directly to parents and not to any religious institution. This case also applied the Establishment Clause to the actions of state governments. (Citation: 330 U.S. 1)

Braunfeld v. Brown (1961)
The Court looked at whether a Pennsylvania “blue law”-which allowed only certain types of stores to remain open for business on Sundays-violated the Free Exercise Clause of the First Amendment by imposing an undue economic burden on members of the Orthodox Jewish community, whose faith requires them to close their businesses from nightfall Friday to nightfall Saturday. In a 6-3 decision, the Court held that the blue law did not violate the Free Exercise Clause, because it had a secular basis and did not make any religious practices unlawful. (Citation: 366 U.S. 599)

Torcaso v. Watkins (1961)
The Court considered whether the Establishment Clause of the First Amendment was violated by a Maryland requirement that a candidate for public office declare a belief in God to be eligible for the position. In a unanimous decision, the Court held that the requirement violated the Establishment Clause by giving preference to candidates who believed in God and were willing to state their beliefs, over other candidates. In this, Maryland effectively aided religions involving a belief in God at the expense of religions or beliefs that do not, a position that a state is expressly prohibited from taking. (Citation: 367 U.S. 488)

Engel v. Vitale (1962)
The Court looked at whether the daily reading of a state-composed nondenominational prayer in school violated the Establishment Clause of the First Amendment. In a 6-1 decision, the Court ruled that New York’s official prayer to begin the school day was an unconstitutional violation of the Establishment Clause. (Citation: 370 U.S. 421) BRI e-Lesson Available

Sherbert v. Verner (1963)
The Court examined whether the state of South Carolina violated the Free Exercise Clause of the First Amendment in denying unemployment benefits to a person for turning down a job, because it required him or her to work on the Sabbath. The Court ruled 7-2 that the South Carolina statute did impede a person’s right to freely exercise religion, in violation of the Free Exercise Clause. (Citation: 374 U.S. 398)

School District of Abington Township, Pennsylvania v. Schempp (1963)
The Court considered whether a Pennsylvania law and policy of the Abington School District requiring public-school students to participate in classroom exercises involving daily Bible verse reading violated the religious freedom of students under the First and Fourteenth Amendments. In an 8-1 decision, the Court found that the Pennsylvania law and school-district practice violated the Establishment Clause and the Free Exercise Clause. (Citation: 374 U.S. 203)

Murray v. Curlett (1963)
The Court examined this case in combination with Abington v. Schempp (1963), determining whether Baltimore, Maryland, public schools violated the Establishment Clause in conducting daily opening exercises involving reading of the Bible and reciting of the Lord’s Prayer. As with Abington v. Schempp, the Maryland school-day religious exercises were declared a violation of the Establishment Clause. (Citation: 374 US 203)

Epperson v. Arkansas (1968)
The Court looked at whether an Arkansas law prohibiting the teaching of evolution violated the free-speech rights of teachers and/or the Establishment Clause of the First Amendment. In its unanimous decision, the Court held that the law did violate the Establishment Clause because, as Justice Abe Fortas wrote in the Court’s opinion, “Arkansas has sought to prevent its teachers from discussing the theory of evolution, because it is contrary to the belief of some that the Book of Genesis must be the exclusive source of doctrine as to the origin of man. No suggestion has been made that Arkansas’s law may be justified by considerations of state policy other than the religious views of some of its citizens.” The Court further ruled that the First Amendment does not permit a state to require teaching and learning to be tailored to the principles or prohibitions of any religious sect or dogma. (Citation: 393 US 97)

Lemon v. Kurtzman (1971)
The Court considered whether a Pennsylvania law reimbursing religious schools with state funds for textbooks and teacher salaries for non-public, non-secular schools violated the Establishment Clause of the First Amendment. In an 8-0 decision, the Court set out a three-pronged test for the constitutionality of a statute, by which a statute is constitutional if: (1) it has a primarily secular purpose; (2) its principal effect neither aids nor inhibits religion; and (3) government and religion are not excessively entangled. On this basis, the Court struck down the Pennsylvania law as in violation of the Establishment Clause, finding that the statute constituted an excessive government entanglement with religion. (Citation: 403 US 602)

Wisconsin v. Yoder (1972)
The Court examined whether the state of Wisconsin’s requirement that all parents send their children to school at least until age 16 violated the First Amendment by criminalizing the conduct of parents who refused to send their children to school for religious reasons. In their unanimous decision, the Court ruled that Amish adolescents could be exempt from the state law requiring school attendance for all 14 to 16-year-olds, because their religion required living apart from the world and worldly influence. The state’s interest in having students attend 2 additional years of school did not outweigh the individual’s right to free exercise of religious belief. (Citation: 406 US 205)

McDaniel v. Paty (1978)
The Court looked at whether a Tennessee law that barred members of the clergy from serving in public office violated the First and Fourteenth Amendments. The Court ruled unanimously that the statute violated the Free Exercise Clause of the First Amendment as applied to the states by the Fourteenth Amendment, because it made the ability to exercise civil rights conditional on the surrender of religious rights. (Citation: 435 US 618)

Stone v. Graham (1980)
The Court considered whether a Kentucky state law mandating the display of the Ten Commandments in public school classrooms violated the Establishment Clause of the First Amendment. Applying the three-prong test from Lemon v. Kurtzman (1971), the Court found 5-4 that the Kentucky law was unconstitutional, because it had no secular legislative purpose. The Court also found that by mandating posting of the Commandments under the guidance of the legislature, the state was providing official support of religion, which was a violation of the Establishment Clause. (Citation: 449 US 39)

Mueller v. Allen (1982)
The Court examined whether a Minnesota state law allowing taxpayers to deduct from their state income tax expenses incurred in providing tuition, textbooks, and transportation for their children’s elementary or secondary school education-including for private secular and parochial schools-violated the Establishment Clause of the First Amendment. In a 5-4 decision, the Court upheld Minnesota’s tax-credit law as constitutional because-applying the three-pronged test from Lemon v. Kurtzman (1971)-the tax credits did not have the effect of advancing religion (primarily secular purpose), were available to all parents and applied to sectarian and nonsectarian tuition (principal effect neither aids nor inhibits religion), and did not excessively entangle government and religion. (Citation: 463 US 388)

Marsh v. Chambers (1983)
The Court looked at whether the Nebraska legislature violated the Establishment Clause of the First Amendment in its practice of opening each of its sessions with a prayer offered by a chaplain paid out of public funds. In a 6-3 decision, the Court held that the Nebraska Legislature’s chaplaincy practice does not violate the Establishment Clause; however, in that decision, it looked past the three-pronged test from Lemon v. Kurtzman (1971), which the practice does not pass, to the long historical custom of the practice-dating back to the Continental Congress and the first Congress that framed the Bill of Rights. In the opinion for the majority, Chief Justice Warren Burger wrote, “In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an ‘establishment’ of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country.” (Citation: 463 US 783)

Lynch v. Donnelly (1984)
The Court considered whether the city of Pawtucket, Rhode Island, violated the Establishment Clause of the First Amendment by including a nativity scene in the Christmas display in a public park, among other figures and decorations traditionally associated with Christmas. The Court applied the three-pronged test from Lemon v. Kurtzman (1971) and, in a 5-4 decision, held that “notwithstanding the religious significance of the creche, the city of Pawtucket has not violated the Establishment Clause of the First Amendment.” The principal purpose of the nativity scene was to celebrate and depict the origins of a national holiday, and in that, it passed the three-pronged test. (Citation: 465 US 668)

Wallace v. Jaffree (1985)
The Court examined whether an Alabama law authorizing a period of silence for “meditation or voluntary prayer” (the law’s wording) violated the Establishment Clause of the First Amendment. In a 6-3 decision, the Court struck down the law as violating the Establishment Clause, because it had no secular purpose (thus failing the 3-pronged test from Lemon v. Kurtzman, 1971), and because the addition of “and voluntary prayer” to the wording of an almost identical earlier statute “indicate[d] that the State intended to characterize prayer as a favored practice, effectively endorsing a religion.” (Citation: 472 U.S. 38)

Estate of Thornton v. Caldor, Inc. (1985)
The Court looked at whether a Connecticut statute providing employees with the absolute and unqualified right not to work on their chosen Sabbath violated the Establishment Clause of the First Amendment. In a 7-1 decision, the Court held that the Connecticut statute violated the Establishment Clause, because it effectively gave Sabbath religious concerns automatic control over all secular interests at the workplace and took no account of the convenience or interests of the employer or of other employees who do not observe a Sabbath. In this, the statute had a primary effect of advancing a particular religious practice. Thus, the statute failed all parts of the 3-pronged secular purpose test from Lemon v. Kurtzman (403 U. S. 602, 1971). (Citation: 472 U.S. 703)

Goldman v. Weinberger (1986)
The Court considered whether a U.S. Air Force regulation regarding wearing of headgear violated the Free Exercise Clause of the First Amendment by preventing an Orthodox Jewish soldier from wearing his yarmulke while on duty and in uniform. The Court ruled 5-4 that the Air Force regulation did not violate the Constitution. In the opinion, Chief Justice William Rehnquist noted that the Court’s “review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society” and that “to accomplish its mission, the military must foster instinctive obedience, unity, commitment, and esprit de corps.” The Air Force’s purpose in its dress regulations is uniformity, and it “reasonably and evenhandedly regulate[s] dress in the interest of” that need. Thus, the First Amendment does not prohibit the Air Force from applying the challenged regulation to the wearing of a yarmulke by a soldier on duty and in uniform, even though that effectively restricts the wearing of headgear required by one’s religious beliefs. (Citation: 475 U.S. 503)

Edwards v. Aguillard (1987)
The Court examined whether a Louisiana law that forbade the teaching of the theory of evolution in public schools unless accompanied by instruction in “creation science” violated the Establishment Clause of the First Amendment as applied to the states through the Fourteenth Amendment. In a 7-2 decision, the Court held that the Louisiana statute violated the Establishment Clause, because it failed all parts of the 3-pronged test from Lemon v. Kurtzman (1971), in that it: (prong 1) lacked a clear secular purpose, (prong 2) endorsed religion by advancing the religious belief that a supernatural being created humankind, and (prong 3) entangled the interests of church and state by seeking “to employ the symbolic and financial support of government to achieve a religious purpose.” (Citation: 482 US 578)

County of Allegheny v. ACLU (1989)
The Court looked at whether Allegheny County and the City of Pittsburgh, Pennsylvania, violated the Establishment clause by the county’s public holiday display of a Christmas nativity scene (creche) and the city’s display of an 18-foot-tall Chanukah menorah next to a 45-foot decorated Christmas tree. In a 5-4 decision, the Court held that the creche display was unconstitutional, but the menorah was permissible. The creche was displayed alone in the courthouse and included an angel holding a banner that said “Gloria in Excelsis Deo” (Latin for “Glory to God in the highest”). The Court said that by including that message and displaying the creche with nothing around it to detract from this religious message, the county was not just celebrating Christmas as a national holiday-which in Lynch v. Donnelly (1984) was ruled permissible despite the holiday’s religious origins-but also was “endorsing a patently Christian message: Glory to God for the birth of Jesus Christ,” and thus violated the Establishment Clause. The city’s menorah and decorated Christmas tree were displayed just outside the City-County building, with a sign at the foot of the tree with the mayor’s name and text declaring the city’s “salute to liberty.” The Court held that by including the menorah with the tree and the sign saluting liberty, “the city conveyed a message of pluralism and freedom of belief” and thus did not violate the Establishment Clause. (Citation: 492 U.S. 573) BRI E-Lesson Available

Board of Education of Westside Community Schools v. Mergens (1990)
The Court considered whether the Equal Access Act (1990) prohibits a high school from denying a student religious group permission to meet on school premises during non-instructional time, and if it does, whether the Act itself violates the Establishment Clause of the First Amendment. In an 8-1 decision, the Court affirmed the lower court’s judgement that, because the school allows other non-curricular groups to meet, it is bound by the Act to permit other groups to meet and cannot deny such permission on the basis of religious content of those meetings. The Court further ruled that the Act did not violate the Establishment Clause, because it passes the 3-pronged test outlined in Lemon v. Kurtzman (1971) in that it grants equal access to both secular and religious speech (secular purpose), and it expressly limits participation by school officials at student religious group meetings and requires that such meetings be held during non-instructional time (does not advance religion and avoids excessive entanglement of religion and government). (Citation: 496 US 226)

Employment Division v. Smith (1990)
The Court examined whether the Free Exercise Clause of the First Amendment allowed the state of Oregon to deny unemployment benefits to someone fired from a job for smoking peyote as part of a religious ceremony. Peyote is a controlled substance under Oregon law, and its possession is a criminal offense. The Court first determined whether such prohibition is constitutional and found that it is constitutional, because the law is “valid and neutral,” applying to everyone and not specifically aimed at a physical act engaged in for a religious reason. In a 6-3 decision, the Court then held that, because ingestion of peyote was prohibited under Oregon law, and because that prohibition is constitutional, Oregon did not violate the Free Exercise Clause in denying persons unemployment compensation when their dismissal results from use of the drug. (Citation: 494 U.S. 872)

Lee v. Weisman (1992)
The Court looked at whether officially approved, clergy-led prayer at public school graduations in Providence, Rhode Island, violated the Establishment Clause of the First Amendment. The Court applied the 3-pronged test from Lemon v. Kurtzman (1971) and in a 5-4 decision, held the practice to be a violation of the Establishment Clause. In the Court’s opinion, Justice Anthony Kennedy wrote that the state government’s involvement in the practice of the clergy-led graduation prayer was pervasive “to the point of creating a state-sponsored and state-directed religious exercise in a public school.” (Citation: 505 US 577 ) BRI e-Lesson Available

Church of the Lukumi Babalu Aye v. City of Hialeah (1993)
The Court considered whether ordinances passed by the city of Hialeah, Florida, banning animal sacrifice violated the Free Exercise Clause. The texts of these laws and the way they operated showed that they were not neutral and generally applicable, but instead targeted the Santeria religion, in which animal sacrifice is an important ritual. In a unanimous decision, the Court held that because the ordinances were designed to persecute or oppress a religion or its practices, they violated the Free Exercise Clause. (Citation: 508 US 520)

Zobrest v. Catalina Foothills School District (1993)
The Court examined whether, based on the Establishment Clause of the First Amendment, a school district may refuse to provide a sign-language interpreter to accompany a deaf student to classes at a religious high school. In a 5-4 ruling, the Court held that the Establishment Clause does not prevent a school district from furnishing a disabled child enrolled in a sectarian school with a sign-language interpreter to facilitate the child’s education. (Citation: 509 US 1)

Kiryas Joel School District v. Grumet (1994)
The Court looked at whether a New York state law creating a special school district to benefit disabled children in the Satmar Hasidic Jewish neighborhood Kiryas Joel violated the Establishment Clause of the First Amendment. In a 6-3 decision, the Court found the law to be unconstitutional, because it failed the second prong of the 3-prong test set out in Lemon v. Kurtzman (1971), in that it advanced religion by creating a school district unit of government that coincided with the neighborhood boundaries of a religious group. (Citation: 512 US 687)

Capitol Square Review and Advisory Board v. Pinette (1995)
The Court considered whether the Advisory Board of Columbus, Ohio, violated the free speech rights of the Ku Klux Klan when it used the Establishment Clause to deny them permission to erect an unattended cross on Capitol Square (the state-house square) during the Christmas season. Under Ohio law, Capitol Square is a forum for discussion of public questions and for public activities, and so is a space that is open to all on equal terms. In a 7-2 decision, the Court held that the denial of permission did violate the Ku Klux Klan’s free speech rights. In the opinion, Justice Antonin Scalia wrote that the display of the cross “was private religious speech that is as fully protected under the Free Speech Clause as secular private expression” and that, because Capitol Square is a traditional public forum, “the Board could regulate the content of the Klan’s expression there only if such a restriction is necessary, and narrowly drawn, to serve a compelling state interest.” (Citation: 515 US 753)

Santa Fe Independent School District v. Doe (2000)
The Court examined whether the state of Texas’ Santa Fe Independent School District’s policy permitting student-led, student-initiated prayer at football games violated the Establishment Clause of the First Amendment. In a 6-3 decision, the Court held that it did, upholding the appeals court’s earlier ruling. In their decision, the Court rejected the school district’s view that, because students controlled the pregame invocation by voting on and delivering its content, it was private speech protected by the Free Speech and Free Exercise Clauses of the First Amendment. Rather, Justice John Paul Stevens wrote in the Court’s opinion that it was public speech, because “the delivery of such a message-over the school’s public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer-is not properly characterized as ‘private’ speech.” Because of this and the context of the message’s delivery being an official school event, the school district’s policy impermissibly “involve[d] both perceived and actual endorsement of religion.” In addition, the Court applied the 3-pronged test from Lemon v. Kurtzman (1971), which the policy failed for having no secular purpose (prong 1), because it “was implemented with the purpose of endorsing school prayer.” (Citation: 530 US 290)

Mitchell v. Helms (2000)
The Court looked at whether Chapter 2 of the Education Consolidation and Improvement Act of 1981, as applied in Jefferson Parish, Louisiana, violated the Establishment Clause of the First Amendment. Chapter 2 was a federal program that through state and local agencies provided educational materials and equipment (e.g., library and media materials and computer software and hardware) to public and private elementary and secondary schools to implement secular, neutral, and nonideological programs. At the time of the case, about 30% of Chapter 2 funds spent in Jefferson Parish went to private schools, most of which were religiously affiliated. In a 6-3 decision, the Court held that Chapter 2 was “not a law respecting an establishment of religion” simply because many of the private schools receiving Chapter 2 aid in the parish are religiously affiliated, but rather what is important is whether the government assistance was neutral toward religion. For this, the Court set out three primary criteria for whether government aid has the effect of advancing religion, under which it does so if it: (1) results in governmental indoctrination, (2) defines its recipients by reference to religion, or (3) creates an excessive entanglement.” According to these three criteria, as applied in Jefferson Parish, the Chapter 2 aid was religiously neutral and so did not violate the Establishment Clause. (Citation: 530 US 793)

Good News Club v. Milford Central School (2001)
The Court considered two questions: (1) whether Milford Central School in New York state violated the free speech rights of the Good News Club, a private Christian organization for children, when it excluded the club from meeting after hours at the school, and (2) whether any such violation was justified by Milford’s concern that permitting the club’s activities would violate the Establishment Clause of the First Amendment. In a 6-3 decision, the Court concluded that Milford’s restriction did violate the club’s free speech rights and that no Establishment Clause concern justified that violation. As Justice Clarence Thomas wrote in the Court’s opinion, “When Milford denied the Good News Club access to the school’s limited public forum on the ground that the Club was religious in nature, it discriminated against the Club because of its religious viewpoint in violation of the Free Speech Clause of the First Amendment.” The Court also rejected Milford’s Establishment Clause concern as justification for their exclusion of the club, noting that it is unlikely that elementary schoolchildren would perceive Milford’s allowance of the club as endorsing it, and because children could not participate in the club without the written permission of their parents, it was unlikely that they would have felt coerced to participate in its religious activities. (Citation: 533 US 98)

Zelman v. Simmons-Harris (2002)
The Court examined whether the state of Ohio’s Pilot Project Scholarship Program violated the Establishment Clause in providing tuition vouchers for certain students in the Cleveland City School District to attend participating public or private-including religious and nonreligious-schools of their parents’ choosing. In a 5-4 decision, the Court held that the program aid was neutral in all respects toward religion, and that therefore the program did not violate the Establishment Clause. Tuition aid under the program was distributed to parents according to financial need, and where the aid was spent depended solely on where parents chose to enroll their children. (Citation: 536 US 639) BRI e-Lesson Available

Elk Grove Unified School District v. Newdow (2004)
The Court looked at whether California’s Elk Grove Unified School District’s pledge policy violates the Constitution. The policy requires each elementary school class to recite daily the Pledge of Allegiance. Michael Newdow, the father of a child in one of the district’s schools, challenged the constitutionality of the district’s policy, because the Pledge contains the words “under God.” In a unanimous decision, the Court found that Newdow, as a non-custodial parent, did not have standing to bring the case to court. Therefore, it reversed the lower court’s finding that Newdow did have standing and that the Pledge policy was unconstitutional. From this position, the Court procedurally could not proceed to answer the constitutional question. However, Justices William Rehnquist, Sandra Day O’Connor, and Clarence Thomas (for part) wrote separate, concurring opinions that also examined the constitutionality question. They wrote that “on the merits” they concluded that the school district’s policy that requires reciting the Pledge of Allegiance, which includes the words “under God,” does not violate the Establishment Clause. Further, they noted, “the phrase ‘under God’ in the Pledge seems, as a historical matter, to sum up the attitude of the Nation’s leaders, and to manifest itself in many of our public observances. Examples of patriotic invocations of God and official acknowledgments of religion’s role in our Nation’s history abound.” They concluded that “the recital, in a patriotic ceremony pledging allegiance to the flag and to the Nation, of the descriptive phrase ‘under God’ cannot possibly lead to the establishment of a religion, or anything like it.” (Citation: 542 US 1)

Locke v. Davey (2004)
The Court considered whether the state of Washington’s decision not to award scholarship funds to college students pursuing devotional divinity degrees violated the Free Exercise Clause. The Court held 7-2 that Washington’s exclusion of the pursuit of a devotional theology degree from its otherwise inclusive scholarship aid program does not violate the Free Exercise Clause. In its opinion, the Court noted that Washington’s program “imposes neither criminal nor civil sanctions on any type of religious service or rite. It neither denies to ministers the right to participate in community political affairs […] nor requires students to choose between their religious beliefs and receiving a government benefit.” Rather, the Court said, the state of Washington has simply chosen not to fund a particular category of instruction. (Citation: 540 U.S. 712) BRI E-Lesson Available

Van Orden v. Perry (2005)
The Court examined whether the Establishment Clause of the First Amendment allows the display of a monument on the Texas State Capitol grounds that is inscribed with the Ten Commandments. In a 5-4 decision, the Court held that the Texas display of the monument falls on the permissible side of the constitutional line and so does not violate the Establishment Clause. The state placed the Ten Commandments monument next to the Texas State Capitol with 38 other monuments and markers representing different aspects of Texas’s political and legal history. In the Court’s opinion, Justice William Rehnquist noted that its religious message notwithstanding, the monument was presented in a context conveying a “secular moral message about proper standards of social conduct and a message about the historic relation between those standards and the law.” Because of its context, Justice Rehnquist wrote that the public visiting the grounds would tend to consider the religious aspect of the tablets’ message as part of that broader message about cultural heritage. (Citation: 545 U.S. 677)

McCreary County v. American Civil Liberties Union of Ky. (2005)
The Court reviewed the lower court’s ruling of unconstitutionality of a display of the Ten Commandments in 2 Kentucky county courthouses, and within that, looked at whether the counties’ purpose was a sound basis for ruling on the Establishment Clause complaints, and whether evaluation of the counties’ claim of secular purpose for the final displays possibly considered how the displays evolved. In each of the courthouses, 2 large, framed copies of the Ten Commandments were displayed alone. In response to the lower court’s first 2 rulings that the displays lacked a secular purpose and were not religiously neutral and therefore violated the Establishment Clause, the counties twice changed the displays. The third version displayed the Ten Commandments with a grouping of other “foundational” documents that oddly included the words to “The Star-Spangled Banner” but omitted the Fourteenth Amendment and quoted more of the Commandments’ purely religious language than the first 2 displays had done. The lower court had found the counties’ newly-claimed secular “educational” purpose to be disingenuous and again found the display to be unconstitutional. In a 5-4 decision, the Supreme Court acknowledged that the history of the displays and the litigation are legitimate to consider, and it upheld the appeals court’s ruling based on the merits. In the Court’s opinion, Justice David Souter wrote that the Court “saw no integration [of secular purpose] here because of a lack of a demonstrated analytical or historical connection between the Commandments and the other documents” in the display, and that furthermore, “the sectarian spirit of the resolutions found enhanced expression in the third display” in the additional quoted religious language of the Commandments. (Citation: 545 U.S. 844)

Cutter v. Wilkinson (2005)
The Court considered whether the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIP) violates the Establishment Clause of the First Amendment. RLUIP prohibits government from burdening prisoners’ religious exercise unless the burden furthers a “compelling government interest.” In a unanimous decision, the Court held that RLUIP did not violate the Establishment Clause. In the Court’s opinion, Justice Ruth Bader Ginsburg wrote that Section 3 of RLUIP (which covers state-run institutions) is “a permissible accommodation” under the Establishment Clause, because it alleviates exceptional burdens on private religious exercise created by the degree of control exerted by government in a prison. That degree of control is unparalleled in civilian society and severely disabling to private religious exercise. In addition, RLUIP does not differentiate among bona fide faiths, and gives no privileged status to any particular religious sect. (Citation: 544 U.S. 709)

Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006)
The Court reviewed the appeals court’s ruling in favor of O Centro Espírita Beneficente União do Vegetal (UDV), finding that the government did not prove a compelling interest in barring the church’s sacramental use of hoasca-an illegal drug under the Controlled Substances Act-for religious purposes. The government maintained that the use of hoasca carried with it health risks and that the Controlled Substances Act could accommodate no exceptions. The church had filed for relief under the Religious Freedom Restoration Act of 1993 (RFRA), which prohibits the government from substantially burdening a person’s religious exercise unless the government demonstrates that the application of the burden to the person was the least restrictive means of advancing a compelling interest. In a unanimous ruling, the Court affirmed the appeals court’s ruling, noting that RFRA requires that a compelling-interest test be performed to address the particular practice at issue. Applying such a test, the Court concluded “that the courts below did not err in determining that the Government failed to demonstrate, at the preliminary injunction stage, a compelling interest in barring UDV’s sacramental use of hoasca,” because the government’s evidence on health risks and the UDV’s countering evidence were equally balanced. In addition, the government’s claim that the Controlled Substance Act could hold no exceptions did not stand up, because there was already an exception made for the Native American religious use of peyote. (Citation: 546 U.S. 418)

Hein v. Freedom From Religion Foundation (2007)
The Court looked at whether taxpayers have standing to bring an Establishment Clause challenge against executive branch actions funded by general appropriations rather than by specific congressional grants. The George W. Bush administration issued executive orders creating an Office of Faith-Based and Community Initiatives for the purposes of allowing religious charity organizations to gain federal funding and hold conferences to promote those initiatives. The Freedom From Religion Foundation sued, asserting this to be a violation of the Establishment Clause, because the conferences would favor religious organizations over nonreligious ones. The Court ruled 5-4 to uphold the lower court’s ruling that taxpayers do not have standing to bring Establishment Clause challenges against programs funded by the executive branch of the government, because “Establishment Clause challenges to the constitutionality of exercises of congressional power under the taxing and spending clause of Art. I, §8.” (Citation: 551 U.S. 587)

Christian Legal Society v. Martinez (2010)
The Court considered whether Hastings College of the Law (Hastings), a school within the University of California public-school system, violates the First Amendment by refusing to officially recognize a student organization unless it allows all students to join the group, even if that requires a religious organization to admit gay students who do not adhere to the group’s core beliefs. Hastings officially recognizes student groups through a “Registered Student Organization” (RSO) program. Having this status confers valuable benefits to a group, such as use of school funds, facilities, and channels of communication, and use of Hastings’s name and logo. In exchange, RSOs must abide by certain conditions, including Hastings’s nondiscrimination policy, which follows state law barring discrimination on a number of bases, including religion and sexual orientation. Under this, RSOs must follow an “all comers” policy, allowing any student to participate, become a member, or seek leadership positions, regardless of her status or beliefs. In a 5-4 decision, the Court held that Hastings’s all-comers policy “is a reasonable, viewpoint-neutral condition on access to the RSO forum” and “therefore does not transgress First Amendment limitations.” (Citation: 561 U.S. 661)

The Bill of Rights Institute is grateful to
The George Washington Institute for Religious Freedom
and
The Ambassador John L. Loeb Visitor’s Center at the Touro Synagogue, Newport, Rhode Island
for making Religious Liberty: The American Experiment a reality.