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71–74. The Act requires secondary schools that receive federal financial assistance to allow student religious groups to meet in school facilities during noncurricular time to the same extent as other student groups and had been enacted by Congress in 1984 to apply the Widmar principles to the secondary school setting. 172 There was no opinion of the Court on Establishment Clause issues, a plurality of four led by Justice O’Connor applying the three-part Lemon test, and concurring Justices Kennedy and Scalia proposing a less stringent test under which ‘‘neutral’’ accommodations of religion would be permissible as long as they do not in effect establish a state religion, and as long as there is no coercion of students to participate in a religious activity. 173 496 U.S. at 242. 174 508 U.S. 384 (1993). religious student groups. In the case of Widmar v. Vincent 169 the Court held that allowing student religious groups equal access to a public college’s facilities would further a secular purpose, would not constitute an impermissible benefit to religion, and would pose little hazard of entanglement. Subsequently, the Court has held that these principles apply to public secondary schools as well as to institutions of higher learning. In Westside Community Board of Education v. Mergens 170 in 1990 the Court upheld application of the Equal Access Act 171 to prevent a secondary school from denying access to school premises to a student religious club while granting access to such other ‘‘noncurriculum’’ related student groups as a scuba diving club, a chess club, and a service club. 172 Justice O’Connor stated in a plurality opinion that ‘‘there is a crucial difference between government speech endorsing religion and private speech endorsing religion. We think that secondary school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis.’’ 173 Similarly, public schools may not rely on the Establishment Clause as grounds to discriminate against religious groups in afterhours use of school property otherwise available for non-religious social, civic, and recreational purposes. In Lamb’s Chapel v. Center Moriches School District, 174 the Court held that a school district could not, consistent with the free speech clause, refuse to allow a religious group to use school facilities to show a film series on family life when the facilities were otherwise available for community use. ‘‘It discriminates on the basis of viewpoint,’’ the Court ruled, ‘‘to permit school property to be used for the presentation of all VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00037 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1050 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 175 508 U.S. at 395. Concurring opinions by Justice Scalia, joined by Justice Thomas, and by Justice Kennedy, criticized the Court’s reference to Lemon. Justice Scalia lamented that ‘‘[l]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District.’’ Id. at 398. Justice White pointedly noted, however, that ‘‘Lemon... has not been overruled.’’ Id at 395, n.7. 176 533 U.S. 98 (2001). 177 515 U.S. 819 (1995). views about family issues and child-rearing except those dealing with the subject matter from a religious viewpoint.’’ In response to the school district’s claim that the establishment clause required it to deny use of its facilities to a religious group, the Court said that there was ‘‘no realistic danger’’ in this instance that ‘‘the community would think that the District was endorsing religion or any particular creed’’ and that such permission would satisfy the requirements of the Lemon test. 175 Similarly, in Good News Club v. Milford Central School, 176 the Court held the free speech clause to be violated by a school policy that barred a religious children’s club from meeting on school premises after school. Given that other groups teaching morals and character development to young children were allowed to use the school’s facilities, the exclusion, the Court said, ‘‘constitutes unconstitutional viewpoint discrimination.’’ Moreover, it said, the school had ‘‘no valid Establishment Clause interest’’ because permitting the religious club to meet would not show any favoritism toward religion but would simply ‘‘ensure neutrality.’’ Finally, the Court has made clear that public colleges may not exclude student religious organizations from benefits otherwise provided to a full spectrum of student ‘‘news, information, opinion, entertainment, or academic communications media groups.’’ In Rosenberger v. Board of Visitors of the University of Virginia, 177 the Court struck down a university policy that afforded a school subsidy to all student publications except religious ones. Once again, the Court held the denial of the subsidy to constitute viewpoint discrimination violative of the free speech clause of the First Amendment. In response to the University’s argument that the Establishment Clause required it not to subsidize an enterprise that promotes religion, the Court emphasized that the forum created by the University’s subsidy policy had neither the purpose nor the effect of advancing religion and, because it was open to a variety of viewpoints, was neutral toward religion. These cases make clear that the Establishment Clause does not necessarily trump the First Amendment’s protection of freedom of speech. In regulating private speech in a public forum, govern- VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00038 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1051 178 ‘‘If religious institutions benefit, it is in spite of rather than because of their religious character. For religious institutions simply share benefits which government makes generally available to educational, charitable, and eleemosynary groups.’’ Abington School Dist. v. Schempp, 374 U.S. 203, 301 (1963) (concurring opinion). 179 Walz v. Tax Comm’n, 397 U.S. 664 (1970). Justice Douglas dissented. 180 397 U.S. at 672–74. 181 See discussion under ‘‘Court Tests Applied to Legislation Affecting Religion,’’ supra. 182 397 U.S. at 674–76. ment may not justify discrimination against religious viewpoints as necessary to avoid creating an ‘‘establishment’’ of religion. Tax Exemptions of Religious Property.—Every State and the District of Columbia provide for tax exemptions for religious institutions, and the history of such exemptions goes back to the time of our establishment as a polity. The only expression by a Supreme Court Justice prior to 1970 was by Justice Brennan, who deemed tax exemptions constitutional because the benefit conferred was incidental to the religious character of the institutions concerned. 178 Then, in 1970, a nearly unanimous Court sustained a state exemption from real or personal property taxation of ‘‘property used exclusively for religious, educational or charitable purposes’’ owned by a corporation or association which was conducted exclusively for one or more of these purposes and did not operate for profit. 179 The first prong of a two-prong argument saw the Court adopting Justice Brennan’s rationale. Using the secular purpose and effect test, Chief Justice Burger noted that the purpose of the exemption was not to single out churches for special favor; instead, the exemption applied to a broad category of associations having many common features and all dedicated to social betterment. Thus, churches as well as museums, hospitals, libraries, charitable organizations, professional associations, and the like, all non-profit, and all having a beneficial and stabilizing influence in community life, were to be encouraged by being treated specially in the tax laws. The primary effect of the exemptions was not to aid religion; the primary effect was secular and any assistance to religion was merely incidental. 180 For the second prong, the Court created a new test, the entanglement test, 181 by which to judge the program. There was some entanglement whether there were exemptions or not, Chief Justice Burger continued, but with exemptions there was minimal involvement. But termination of exemptions would deeply involve government in the internal affairs of religious bodies, because evaluation of religious properties for tax purposes would be required and there would be tax liens and foreclosures and litigation concerning such matters. 182 VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00039 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1052 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 183 For example, the Court subsequently accepted for review a case concerning property tax exemption for church property used as a commercial parking lot, but state law was changed, denying exemption for purely commercial property and requiring a pro rata exemption for mixed use, and the Court remanded so that the change in the law could be considered. Differderfer v. Central Baptist Church, 404 U.S. 412 (1972). 184 Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) . 185 Jimmy Swaggart Ministries v. California Bd. of Equalization, 493 U.S. 378 (1990). Similarly, there is no constitutional impediment to straightforward application of 26 U.S.C. § 170 to disallow a charitable contribution for payments to a church found to represent a reciprocal exchange rather than a contribution or gift. Hernandez v. Commissioner, 490 U.S. 680 (1989). 186 Section 703 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–2, makes it unlawful for any employer to discriminate in employment practices on the basis of an employee’s religion. Section 702, 42 U.S.C. § 2000e–1, exempts from the prohibition ‘‘a religious corporation . . . with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation . . . of its activities.’’ 187 483 U.S. 327 (1987). 188 483 U.S. at 338. 189 483 U.S. at 339. While the general issue is now settled, it is to be expected that variations of the exemption upheld in Walz will present the Court with an opportunity to elaborate the field still further. 183 For example, the Court determined that a sales tax exemption applicable only to religious publications constituted a violation of the Establishment Clause, 184 and, on the other hand, that application of a general sales and use tax provision to religious publications violates neither the Establishment Clause nor the Free Exercise Clause. 185 Exemption of Religious Organizations from Generally Applicable Laws.—The Civil Rights Act’s exemption of religious organizations from the prohibition against religious discrimination in employment 186 does not violate the Establishment Clause when applied to a religious organization’s secular, nonprofit activities. The Court held in Corporation of the Presiding Bishop v. Amos 187 that a church-run gymnasium operated as a nonprofit facility open to the public could require that its employees be church members. Declaring that ‘‘there is ample room for accommodation of religion under the Establishment Clause,’’ 188 the Court identified a legitimate purpose in freeing a religious organization from the burden of predicting which of its activities a court will consider to be secular and which religious. The rule applying across-the-board to nonprofit activities and thereby ‘‘avoid[ing] . . . intrusive inquiry into religious belief’’ also serves to lessen entanglement of church and state. 189 The exemption itself does not have a principal effect VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00040 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1053 190 ‘‘For a law to have forbidden ‘effects’ . . . it must be fair to say that the government itself has advanced religion through its own activities and influence.’’ 483 U.S. at 337. Justice O’Connor’s concurring opinion suggests that practically any benefit to religion can be ‘‘recharacterized as simply ‘allowing’ a religion to better advance itself,’’ and that a ‘‘necessary second step is to separate those benefits to religion that constitutionally accommodate the free exercise of religion from those that provide unjustifiable awards of assistance to religious organizations.’’ Id. at 347, 348. 191 The history is recited at length in the opinion of the Court in McGowan v. Maryland, 366 U.S. 420, 431–40 (1961), and in Justice Frankfurter’s concurrence. Id. at 459, 470–551 and appendix. 192 366 U.S. 420 (1961). Decision on the establishment question in this case also controlled the similar decision on that question in Two Guys from Harrison-Allentown v. McGinley, 366 U.S. 582 (1961), Braunfeld v. Brown, 366 U.S. 599 (1961), and Gallagher v. Crown Kosher Super Market, 366 U.S. 617 (1961). On free exercise in these cases, see discussion infra. 193 McGowan v. Maryland, 366 U.S. 420, 444 (1961). 194 366 U.S. at 445. 195 366 U.S. at 449-52. of advancing religion, the Court concluded, but merely allows churches to advance religion. 190 Sunday Closing Laws.—The history of Sunday Closing Laws goes back into United States colonial history and far back into English history. 191 Commonly, the laws require the observance of the Christian Sabbath as a day of rest, although in recent years they have tended to become honeycombed with exceptions. The Supreme Court rejected an Establishment Clause challenge to Sunday Closing Laws in McGowan v. Maryland. 192 The Court acknowledged that historically the laws had a religious motivation and were designed to effectuate concepts of Christian theology. However, ‘‘[i]n light of the evolution of our Sunday Closing Laws through the centuries, and of their more or less recent emphasis upon secular considerations, it is not difficult to discern that as presently written and administered, most of them, at least, are of a secular rather than of a religious character, and that presently they bear no relationship to establishment of religion. . . .’’ 193 ‘‘[T]he fact that this [prescribed day of rest] is Sunday, a day of particular significance for the dominant Christian sects, does not bar the State from achieving its secular goals. To say that the States cannot prescribe Sunday as a day of rest for these purposes solely because centuries ago such laws had their genesis in religion would give a constitutional interpretation of hostility to the public welfare rather than one of mere separation of church and State.’’ 194 The choice of Sunday as the day of rest, while originally religious, now reflected simple legislative inertia or recognition that Sunday was a traditional day for the choice. 195 Valid secular reasons existed for not simply requiring one day of rest and leaving to each individual to choose the day, reasons of ease of enforcement and of assuring VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00041 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1054 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 196 366 U.S. at 449-52. Justice Frankfurter, with whom Justice Harlan concurred, arrived at the same conclusions by a route that did not require approval of Everson v. Board of Education, from which he had dissented. 197 Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985). 198 In United States v. Seeger, 380 U.S. 163 (1965), a unanimous Court construed the language of the exemption limiting the status to those who by ‘‘religious training and belief’’ (that is, those who believed in a ‘‘Supreme Being’’), to mean that a person must have some belief which occupies in his life the place or role which the traditional concept of God occupies in the orthodox believer. After the ‘‘Supreme Being’’ clause was deleted, a plurality in Welsh v. United States, 398 U.S. 333 (1970), construed the religion requirement as inclusive of moral, ethical, or religious grounds. Justice Harlan concurred on constitutional grounds, believing that the statute was clear that Congress had intended to restrict conscientious objection status to those persons who could demonstrate a traditional religious foundation for their beliefs and that this was impermissible under the Establishment Clause. Id. at 344. The dissent by Justices White and Stewart and Chief Justice Burger rejected both the constitutional and the statutory basis. 398 U.S. at 367. 199 401 U.S. 437 (1971). 200 401 U.S. at 449. 201 401 U.S. at 450. 202 401 U.S. at 452. a common day in the community for rest and leisure. 196 More recently, a state statute mandating that employers honor the Sabbath day of the employee’s choice was held invalid as having the primary effect of promoting religion by weighing the employee’s Sabbath choice over all other interests. 197 Conscientious Objection.—Historically, Congress has provided for alternative service for men who had religious scruples against participating in either combat activities or in all forms of military activities; the fact that Congress chose to draw the line of exemption on the basis of religious belief confronted the Court with a difficult constitutional question, which, however, the Court chose to avoid by a somewhat disingenuous interpretation of the statute. 198 In Gillette v. United States, 199 a further constitutional problem arose in which the Court did squarely confront and validate the congressional choice. Congress had restricted conscientious objection status to those who objected to ‘‘war in any form’’ and the Court conceded that there were religious or conscientious objectors who were not opposed to all wars but only to particular wars based upon evaluation of a number of factors by which the ‘‘justness’’ of any particular war could be judged; ‘‘properly construed,’’ the Court said, the statute did draw a line relieving from military service some religious objectors while not relieving others. 200 Purporting to apply the secular purpose and effect test, the Court looked almost exclusively to purpose and hardly at all to effect. Although it is not clear, the Court seemed to require that a classification must be religiously based ‘‘on its face’’ 201 or lack any ‘‘neutral, secular basis for the lines government has drawn’’ 202 in order that it be held to violate the Establishment Clause. The classification here was not VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00042 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1055 203 401 U.S. at 452. 204 401 U.S. at 452-60. 205 See discussion under ‘‘Door-to-Door Solicitation,’’ infra. 206 Larson v. Valente, 456 U.S. 228 (1982). Two Justices dissented on the merits, id. at 258 (Justices White and Rehnquist), while two other Justices dissented on a standing issue. Id. at 264 (Chief Justice Burger and Justice O’Connor) 207 456 U.S. at 246-51. Compare Heffron v. ISKCON, 452 U.S. 640, 652–53 (1981), and id. at 659 n.3 (Justice Brennan, concurring in part and dissenting in part) (dealing with a facially neutral solicitation rule distinguishing between religious groups that have a religious tenet requiring peripatetic solicitation and those who do not). 208 463 U.S. 783 (1983). Marsh was a 6–3 decision, with Chief Justice Burger’s opinion for the Court being joined by Justices White, Blackmun, Powell, Rehnquist, and O’Connor, and with Justices Brennan, Marshall, and Stevens dissenting. religiously based ‘‘on its face,’’ and served ‘‘a number of valid purposes having nothing to do with a design to foster or favor any sect, religion, or cluster of religions.’’ 203 These purposes, related to the difficulty in separating sincere conscientious objectors to particular wars from others with fraudulent claims, included the maintenance of a fair and efficient selective service system and protection of the integrity of democratic decision-making. 204 Regulation of Religious Solicitation.—Although the solicitation cases have generally been decided under the free exercise or free speech clauses, 205 in one instance the Court, intertwining establishment and free exercise principles, voided a provision in a state charitable solicitations law that required only those religious organizations that received less than half their total contributions from members or affiliated organizations to comply with the registration and reporting sections of the law. 206 Applying strict scrutiny equal protection principles, the Court held that by distinguishing between older, well-established churches that had strong membership financial support and newer bodies lacking a contributing constituency or that may favor public solicitation over general reliance on financial support from the members, the statute granted denominational preference forbidden by the Establishment Clause. 207 Religion in Governmental Observances.—The practice of opening legislative sessions with prayers by paid chaplains was upheld in Marsh v. Chambers, 208 a case involving prayers in the Nebraska Legislature. The Court relied almost entirely on historical practice. Congress had paid a chaplain and opened sessions with prayers for almost 200 years; the fact that Congress had continued the practice after considering constitutional objections in the Court’s view strengthened rather than weakened the historical argument. Similarly, the practice was well rooted in Nebraska and in most other states. Most importantly, the First Amendment had been drafted in the First Congress with an awareness of the chap- VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00043 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1056 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 209 Chambers v. Marsh, 675 F.2d 228 (8th Cir. 1982). 210 School prayer cases were distinguished on the basis that legislators, as adults, are presumably less susceptible than are schoolchildren to religious indoctrination and peer pressure, 463 U.S. at 792, but there was no discussion of the tests themselves. 211 465 U.S. 668 (1984). Lynch was a 5–4 decision, with Justice Blackmun, who voted with the majority in Marsh, joining the Marsh dissenters in this case. Again, Chief Justice Burger wrote the opinion of the Court, joined by the other majority Justices, and again Justice Brennan wrote a dissent, joined by the other dissenters. A concurring opinion was added by Justice O’Connor, and a dissenting opinion was added by Justice Blackmun. 212 492 U.S. 573 (1989). 213 465 U.S. at 675, quoting Zorach v. Clausen, 343 U.S. 306, 313 (1952). laincy practice, and this practice was not prohibited or discontinued. The Court did not address the lower court’s findings, 209 amplified in Justice Brennan’s dissent, that each aspect of the Lemon v. Kurtzman tripartite test had been violated. Instead of constituting an application of the tests, therefore, Marsh can be read as representing an exception to their application. 210 Religious Displays on Government Property.—A different form of governmentally sanctioned religious observance—inclusion of religious symbols in governmentally sponsored holiday displays— was twice before the Court, with varying results. In 1984, in Lynch v. Donnelly, 211 the Court found no violation of the Establishment Clause occasioned by inclusion of a Nativity scene (creche) in a city’s Christmas display; in 1989, in Allegheny County v. Greater Pittsburgh ACLU, 212 inclusion of a creche in a holiday display was found to constitute a violation. Also at issue in Allegheny County was inclusion of a menorah in a holiday display; here the Court found no violation. The setting of each display was crucial to the varying results in these cases, the determinant being whether the Court majority believed that the overall effect of the display was to emphasize the religious nature of the symbols, or whether instead the emphasis was primarily secular. Perhaps equally important for future cases, however, was the fact that the four dissenters in Allegheny County would have upheld both the creche and menorah displays under a more relaxed, deferential standard. Chief Justice Burger’s opinion for the Court in Lynch began by expanding on the religious heritage theme exemplified by Marsh; other evidence that ‘‘’[w]e are a religious people whose institutions presuppose a Supreme Being’’’ 213 was supplied by reference to the national motto ‘‘In God We Trust,’’ the affirmation ‘‘one nation under God’’ in the pledge of allegiance, and the recognition of both Thanksgiving and Christmas as national holidays. Against that background, the Court then determined that the city’s inclusion of the creche in its Christmas display had a legitimate secular pur- VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00044 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1057 214 465 U.S. at 680. 215 465 U.S. at 681-82. Note that, while the extent of benefit to religion was an important factor in earlier cases, it was usually balanced against the secular effect of the same practice rather than the religious effects of other practices. 216 465 U.S. at 683-84. 217 Justice O’Connor, who had concurred in Lynch, was the pivotal vote, joining the Lynch dissenters to form the majority in Allegheny County. Justices Scalia and Kennedy, not on the Court in 1984, replaced Chief Justice Burger and Justice Powell in voting to uphold the creche display; Justice Kennedy authored the dissenting opinion, joined by the other three. 218 492 U.S. at 598, 600. 219 492 U.S. at 616. 220 492 U.S. at 635. pose in recognizing ‘‘the historical origins of this traditional event long [celebrated] as a National Holiday,’’ 214 and that its primary effect was not to advance religion. The benefit to religion was called ‘‘indirect, remote, and incidental,’’ and in any event no greater than the benefit resulting from other actions that had been

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