Religion And The U. S. Supreme Court - Cases (3 of 4)

by Bill Schultz

From 1961 through 1980

Table of Contents

 


  • McGowan v. Maryland, 366 U.S. 420 (May 29, 1961).

    Chief Justice Warren (apparently with Justices Black, Clark, Brennan, Whittaker, and Stewart) upheld an amazingly irrational set of Maryland "Blue Laws" against constitutional challenges, finding that even Virginia, while passing its "act for establishing religious freedom," apparently did not repeal any Sunday closing laws, and since that "act" has been taken as evidence of the meaning of the First Amendment, it therefore follows that Sunday closing laws were not viewed by the founding fathers as offensive to the First Amendment.

    Justice Frankfurter (with Justice Harlan) concurred in the result, reviewing at length the long history of so-called "Blue Laws" down through history, and then concluding that "whatever the nature of the propulsions underlying state-enforced Sunday labor stoppage during these centuries before the twentieth, it is clear that its effect was the creation of an institution of Sunday as a day apart. The origins of the institution were religious, certainly, but through long-established usage it had become a part of the life of the English people."

    Justice Douglas dissented, beginning with a lengthy quote from West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178 (June 14, 1943), and then noting that: "With that as my starting point I do not see how a State can make protesting citizens refrain from doing innocent acts on Sunday because the doing of those acts offends sentiments of their Christian neighbors." ... "But those who fashioned the First Amendment decided that if and when God is to be served, His service will not be motivated by coercive measures of government." ... "No matter how much is written, no matter what is said, the parentage of these laws is the Fourth Commandment; and they serve and satisfy the religious predispositions of our Christian communities." The opinion ends with a quote from a Presbyterian minister: ". . . I do not believe that because I have set aside Sunday as a holy day I have the right to force all men to set aside that day also. Why should my faith be favored by the State over any other man's faith?" Justice Douglas ends with: "With all deference, none of the opinions filed today in support of the Sunday laws has answered that question."

  • Two Guys v. McGinley, 366 U.S. 582 (May 29, 1961).

    Chief Justice Warren (apparently with Justices Black, Clark, Brennan, Whittaker, and Stewart) followed the lead case of McGowan v. Maryland, 366 U.S. 420 (May 29, 1961), finding little in the Pennsylvania laws to distinguish this case from the Maryland laws.

    Justice Frankfurter (with Justice Harlan) relied upon their concurrence in the result for McGowan v. Maryland, 366 U.S. 420 (May 29, 1961).

    Justice Douglas dissented, with the same dissenting opinion filed for McGowan v. Maryland, 366 U.S. 420 (May 29, 1961), above.

  • Braunfeld v. Brown, 366 U.S. 599 (May 29, 1961).

    Chief Justice Warren (with Justices Black, Clark, and Whittaker) followed the above cases of McGowan v. Maryland, 366 U.S. 420 (May 29, 1961) and Two Guys v. McGinley, 366 U.S. 582 (May 29, 1961) with respect to most of the issues raised against the Pennsylvania "Blue Laws." The appellants herein, orthodox Jewish merchants, complained that the Sunday closing laws, combined with their own religiously compelled closing from sundown Friday until sundown Saturday, worked an extreme disadvantage upon them by imposing the Christian Sabbath upon Jews. The plurality dismissed these claims on the grounds that this is just the natural result of upholding the Sunday closing laws when a person is an observer of a different Sabbath day.

    Justice Harlan concurs in the judgment.

    Justice Frankfurter (with Justice Harlan) relied on their opinion for the lead case of McGowan v. Maryland, 366 U.S. 420 (May 29, 1961), concurring in the result, with the exception that Justice Frankfurter, for himself only, would have remanded to the trial court for a hearing on whether "the 1959 Pennsylvania Sunday retail sales act is irrational and arbitrary."

    Justice Brennan (with Justice Stewart) concurred in the portions of this decision dealing with the Establishment Clause and the Due Process Clause, but dissented in the portion dealing with the Free Exercise Clause claims. A person's freedom of religion is "susceptible of restriction only to prevent grave and immediate danger to interests which the State may lawfully protect." Noting that 21 of 34 states with Sunday closing laws have created statutory exceptions for Jewish merchants, that can then be used to argue that the exception ought to be raised to a constitutional level herein.

    Justice Stewart wrote separately (and briefly) to bemoan the "cruel choice" forced upon orthodox Jews by these Pennsylvania Sunday closing laws.

    Justice Douglas dissented, with the same dissenting opinion filed for McGowan v. Maryland, 366 U.S. 420 (May 29, 1961), above.

  • Gallagher v. Crown Kosher Market, 366 U.S. 617 (May 29, 1961).

    Chief Justice Warren (with Justices Black, Clark, and Whittaker) followed the above cases of McGowan v. Maryland, 366 U.S. 420 (May 29, 1961), Two Guys v. McGinley, 366 U.S. 582 (May 29, 1961), and Braunfeld v. Brown, 366 U.S. 599 (May 29, 1961), essentially holding that these Jewish merchants did not have a constitutional right to demand an exemption from Sunday closing laws because their Sabbath is on Saturday.

    Justice Frankfurter (with Justice Harlan) relied on their opinion for the lead case of McGowan v. Maryland, 366 U.S. 420 (May 29, 1961), concurring in the result.

    Justice Brennan (with Justice Stewart) dissented, holding that the appellants were aggrieved on Free Exercise grounds, as stated in their dissenting opinion for Braunfeld v. Brown, 366 U.S. 599 (May 29, 1961).

    Justice Douglas dissented, with the same dissenting opinion filed for McGowan v. Maryland, 366 U.S. 420 (May 29, 1961), above.

  • Torcaso v. Watkins, 367 U.S. 488 (June 19, 1961).***** LANDMARK CASE *****

    Justice Black (apparently with Chief Justice Warren and Justices Douglas, Clark, Brennan, Whittaker, and Stewart held that "a declaration of belief in the existence of God" as a qualification for the holding of an office in the State of Maryland "unconstitutionally invades the appellant's freedom of belief and religion and therefore cannot be enforced against him." It also noted in passing, in response to a suggestion that language in Zorach v. Clauson, 343 U.S. 306 (April 28, 1952) might have weakened the declaration quoted from Everson v. Board of Education, 330 U.S. 1 (Feb. 10, 1947), that "We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person 'to profess a belief or disbelief in any religion.' Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, [footnote omitted] and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs."

    Justices Frankfurter and Harlan concured in the result.

    Personal Comments: So far as I know, the is the first case in which the rights of an atheist were upheld against a general requirement for belief, thus theoretically allowing any atheist to be free from compulsory religious declarations in order to fully participate in government-sponsored activities of any sort. This led to the elimination of "... so help me God" from oaths, etc.

  • Engel v. Vitale, 370 U.S. 421 (June 25, 1962).***** LANDMARK CASE *****

    Justice Black (apparently with Chief Justice Warren, Justice Douglas, Justice Harlan, Justice Brennan, and Justice Clark, apparently voting 6-1) Struck down an official government prayer for school children to recite each day, holding "that the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government."

    Justice Douglas concurred, noting that "[t]he point for decision is whether the Government can constitutionally finance a religious exercise. Our system at the federal and state levels is presently honeycombed with such financing.[Footnote omitted.] Nevertheless, I think it is an unconstitutional undertaking whatever form it takes."

    Justices White and Frankfurter did not take part in the decision.

    Justice Stewart dissented, noting: "I cannot see how an 'official religion' is established by letting those who want to say a prayer say it. On the contrary, I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation."

  • Abington School District v. Schempp, 374 U.S. 203 (June 17, 1963).***** LANDMARK CASE *****
    [Decided together with "Murray et al. v. Curlett et al., Constituting the Board of School Commissioners of Baltimore City," which is the U. S. Supreme Court case won by Madalyn Murray-O'Hair.]

    Justice Clark (apparently with Chief Justice Warren and Justices Black, Douglas, Harlan, Brennan, White, and Goldberg, apparently voting 8-1) struck down laws and practices allowing or requiring Bible readings, prayers, and other religious exercises during the official opening ceremonies for each school day, holding that "as the state cannot forbid, neither can it perform or aid in performing the religious function." ... "The wholesome 'neutrality' of which this Court's cases speak thus stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or dependency of one upon the other to the end that official support of the State or Federal Government would be placed behind the tenets of one or of all orthodoxies. This the Establishment Clause prohibits. And a further reason for neutrality is found in the Free Exercise Clause, which recognizes the value of religious training, teaching and observance and, more particularly, the right of every person to freely choose his own course with reference thereto, free of any compulsion from the state. This the Free Exercise Clause guarantees. Thus, as we have seen, the two clauses may overlap." ... "While the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs."

    Justice Douglas concurred, noting the practices of countries having a state church, and declaring that "[t]he vice of all such arrangements under the Establishment Clause is that the state is lending its assistance to a church's efforts to gain and keep adherents."

    Justice Brennan concurred: "While our institutions reflect a firm conviction that we are a religious people, those institutions by solemn constitutional injunction may not officially involve religion in such a way as to prefer, discriminate against, or oppress, a particular sect or religion. Equally the Constitution enjoins those involvements of religious with secular institutions which (a) serve the essentially religious activities of religious institutions; (b) employ the organs of government for essentially religious purposes; or (c) use essentially religious means to serve governmental ends where secular means would suffice."

    Justice Goldberg (with Justice Harlan) concurred: "The fullest realization of true religious liberty requires that government neither engage in nor compel religious practices, that it effect no favoritism among sects or between religion and nonreligion, and that it work deterrence of no religious belief."

    Justice Stewart dissented. "In the absence of evidence that the legislature or school board intended to prohibit local schools from substituting a different set of readings where parents requested such a change, we should not assume that the provisions before us - as actually administered - may not be construed simply as authorizing religious exercises, nor that the designations may not be treated simply as indications of the promulgating body's view as to the community's preference. We are under a duty to interpret these provisions so as to render them constitutional if reasonably possible."

  • Sherbert v. Verner, 374 U.S. 398 (June 17, 1963).***** LANDMARK CASE ***** but at least partly *OVERRULED* or otherwise limited by both Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (April 17, 1990) and City of Boerne v. Flores, 521 U. S. 507 (June 25, 1997) wherein the Supreme Court noted that these so-called "Free Exercise" cases thus "stand for 'the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of religious hardship without compelling reason.'"

    Justice Brennan (with Chief Justice Warren and Justices Black, Douglas, Clark, and Goldberg) held that South Carolina could not exclude a person from unemployment compensation when their status of being unemployed was due to the exercise of their right to observe their Sabbath on a particular day (in this case, Saturday).

    Justice Douglas concurred, taking an expansive view of the Free Exercise clause.

    Justice Stewart concurred in the result, but noted that cases decided under the Free Exercise clause (requiring government sensitivity to religious beliefs and the creation of some exceptions to general laws when they impinge on the free exercise of a religious belief) could not be squared with cases decided under the Establishment Clause (requiring that government be blind to religious preferences and treat all citizens equally, regardless of religious belief), and that, according, the Court's prior holding for Braunfeld v. Brown, 366 U.S. 599 (May 29, 1961) should be overruled and decided in accordance with principles reconcilable with the statements made herein.

    Justice Harlan (with Justice White) dissented, holding that "I cannot subscribe to the conclusion that the State is constitutionally compelled to carve out an exception to its general rule of eligibility in the present case. Those situations in which the Constitution may require special treatment on account of religion are, in my view, few and far between, and this view is amply supported by the course of constitutional litigation in this area."

  • United States v. Seeger, 380 U.S. 163 (March 8, 1965).

    Justice Clark (with an apparently unanimous Court) held that it was proper to grant conscientious objector status to a person who expressed non-traditional theistic beliefs leading them to become a conscientious objector. "The validity of what he believes cannot be questioned. Some theologians, and indeed some examiners, might be tempted to question the existence of the registrant's 'Supreme Being' or the truth of his concepts. But these are inquiries foreclosed to Government." The Court did not consider, however, the question of an atheistic belief system. But it did quote from a book by an Ethical Culture (religious humanism) proponent.

    Justice Douglas concurred, noting his refusal to construe the statute in such a manner that it denied the exemption to members of one religious faith while granting it to the members of another. "In sum, I agree with the Court that any person opposed to war on the basis of a sincere belief, which in his life fills the same place as a belief in God fills in the life of an orthodox religionist, is entitled to exemption under the statute."

  • Flast v. Cohen, 392 U.S. 83 (June 10, 1968).

    Chief Justice Warren (apparently with Justices Black, Douglas, Brennan, Stewart, White, Fortas, and Marshall) carved out an exception to Frothingham v. Mellon, 262 U.S. 447 (June 4, 1923) which generally bars suits by taxpayers challenging the constitutionality of federal statutes. For the instant case, the Court held that whenever the Constitution can be viewed as a bar to the spending power of Congress, as it is for Establishment Clause cases, then a taxpayer may gain standing to sue to enforce that bar.

    Justice Douglas concurred, but expressed a willingness to overrule Frothingham, supra, in the instant action.

    Justice Stewart concurred with the proviso that only Establishment Clause violations were given standing under this case.

    Justice Fortas concurred, also with the understanding that only Establishment Clause suits were allowed by this holding.

    Justice Harlan dissented, expressing his preference for only allowing "taxpayer" standing in those few cases where Congress has specifically allowed a private person to sue to vindicate a public interest.

  • Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236 (June 10, 1968).

    Justice White (apparently with Chief Justice Warren and Justices Harlan, Brennan, Stewart, and Marshall) upheld as constitutional a law requiring public schools to lend to all students in specified grades the textbooks used in the public schools, even if the students attended private religious schools, following Everson v. Board of Education, 330 U.S. 1 (Feb. 10, 1947). Of course, the loan of religious books can be unconstitutional, but nothing appeared in this record to indicate that was the case herein.

    Justice Harlan concurred, but took some issue with the specific test used to reach the result.

    Justice Black dissented because prior cases "plainly interpret the First and Fourteenth Amendments as protecting the taxpayers of a State from being compelled to pay taxes to their government to support the agencies of private religious organizations the taxpayers oppose." ... "I still subscribe to the belief that tax-raised funds cannot constitutionally be used to support religious schools, buy their school books, erect their buildings, pay their teachers, or pay any other of their maintenance expenses, even to the extent of one penny. The First Amendment's prohibition against governmental establishment of religion was written on the assumption that state aid to religion and religious schools generates discord, disharmony, hatred, and strife among our people, and that any government that supplies such aids is to that extent a tyranny. And I still believe that the only way to protect minority religious groups from majority groups in this country is to keep the wall of separation between church and state high and impregnable as the First and Fourteenth Amendments provide. The Court's affirmance here bodes nothing but evil to religious peace in this country."

    Justice Douglas dissented, noting that "the statutory system provides that the parochial school will ask for the books that it wants." ... "If the board of education supinely submits by approving and supplying the sectarian or sectarian-oriented textbooks, the struggle to keep church and state separate has been lost. If the board resists, then the battle line between church and state will have been drawn and the contest will be on to keep the school board independent or to put it under church domination and control."

    Justice Fortas dissented, noting: "[t]he majority opinion of the Court upholds the New York statute by ignoring a vital aspect of it. Public funds are used to buy, for students in sectarian schools, textbooks which are selected and prescribed by the sectarian schools themselves."

  • Epperson v. Arkansas, 393 U.S. 97 (November 12, 1968).
    See also: John Thomas Scopes v. The State, 154 Tenn. (1 Smith) 105, 289 S.W. 363, and other information about the infamous "Scopes trial."

    Justice Fortas (apparently with all but Justice Stewart) overturned as unconstitutional an Arkansas "anti-evolution" statute. "Arkansas' law cannot be defended as an act of religious neutrality. Arkansas did not seek to excise from the curricula of its schools and universities all discussion of the origin of man. The law's effort was confined to an attempt to blot out a particular theory because of its supposed conflict with the Biblical account, literally read."

    Justice Black concurred, but also noted that the case might not actually present a "live controversy" and that the most which could be said about the statute was it is vague, and thus it could be overturned as "void for vagueness."

    Justice Harlan concurred, bemoaning the brief "Per Curium" opinion of the Supreme Court of Arkansas which reversed the trial court finding of unconstitutionality, and also bemoaning the lengthy digression in the majority opinion which discussed issues which the Court ultimately decided to not decide in this case.

    Justice Stewart concurred in the result, preferring to hold the Arkansas statute, as construed by its Supreme Court, "void for vagueness," in that no teacher could reasonably understand the limits placed upon his or her speech by this criminal statute.

  • Presbyterian Church v. Hull Memorial Presbyterian Church, 393 U.S. 440 (January 27, 1969).

    Justice Brennan (with an apparently unanimous Court) held that courts may not try an issue of whether or not church doctrine has changed in resolving a dispute over church property, and in the case of a hierarchical church organization, there must be general deference to the decisions of the church hierarchy. "It is obvious, however, that not every civil court decision as to property claimed by a religious organization jeopardizes values protected by the First Amendment. Civil courts do not inhibit free exercise of religion merely by opening their doors to disputes involving church property. And there are neutral principles of law, developed for use in all property disputes, which can be applied without 'establishing' churches to which property is awarded. But First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice."

    Justice Harlan concurred, noting his understanding that the broad language used did not imply that a court could not enforce the terms of an express trust which dealt with doctrinal matters, such as (perhaps) the ordination of women or making changes in dogmatic declarations.

  • Maryland and Virginia Eldership v. Church of God at Sharpsburg, Inc., 396 U.S. 367 (January 19, 1970).

    Per Curium "Since state court's resolution of property dispute between church bodies was made on basis of state law that did not involve inquiry into religious doctrine, the appeal involves no substantial federal question."

  • Walz v. Tax Comm'n of New York City, 397 U.S. 664 (May 4, 1970).

    Chief Justice Burger (apparently with Justices Black, Brennan, Harlan, Marshall, Blackmun, White, and Stewart) upheld the granting of property tax exemptions to churches and other religious non-profit groups as not violating the Establishment Clause.

    Justice Brennan concurred, adhering to his opinion in Abington School District v. Schempp, 374 U.S. 203, 218, 220 (June 17, 1963). There, he said "the line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers." It seems clear that the Founding Fathers would have (and did) exempt church property from taxation.

    Justice Harlan concurred. "Unlike the subsidy that my Brother Douglas foresees as the next step down the road, tax exemptions to nonprofit organizations are an institution in themselves, so much so that they are, as THE CHIEF JUSTICE points out, expected and accepted as a matter of course."

    Justice Douglas dissented, asserting that there was no fundamental difference between allowing a church an exemption from property taxes (as for the instant case) and granting it a cash subsidy in the same amount; both should be unconstitutional under the Establishment Clause.

  • Welsh v. United States, 398 U.S. 333 (June 15, 1970).

    Justice Black (with Justices Douglas, Brennan, and Marshall) held that this case was controlled by United States v. Seeger, 380 U.S. 163 (March 8, 1965), reasserting that the test for conscientious objector status was whether or not the objection was based upon "A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption."

    Justice Harlan concurred in the result, finding that when Congress mandated that belief in a "Supreme Being" was necessary to obtain "conscientious objector" status, it violated the Establishment Clause, and thereby created an "underinclusive" test for said status. "Thus I am prepared to accept the prevailing opinion's conscientious objector test, not as a reflection of congressional statutory intent but as patchwork of judicial making that cures the defect of under-inclusion in 6 (j) and can be administered by local boards in the usual course of business."

    Justice White (with the Chief Justice and Justice Stewart) dissented, objecting to "extending draft exemption to those who disclaim religious objections to war and whose views about war represent a purely personal code arising not from religious training and belief as the statute requires but from readings in philosophy, history, and sociology."

  • Gillette v. United States, 401 U.S. 437 (March 8, 1971).

    Justice Marshall (with the Chief Justice and Justices Harlan, Brennan, Stewart, White, and Blackmun) affirmed two cases where men were convicted of refusing to report for induction into the armed services, holding that objection to a particular war (in this case, the Viet Nam War) was not within the exemption statute allowing for conscientious objectors which only allowed objectors to "war in any form" to be recognized. The Court rejected an argument that this amounted to picking and choosing which religious beliefs a person is lawfully allowed to follow.

    Justice Black concurred in part I and the judgment.

    Justice Douglas dissented, citing to the dissent of Chief Justice Hughes for United States v. Macintosh, 283 U.S. 605 , 51 S. Ct. 570 (May 25, 1931).

  • Lemon v. Kurtzman, 403 U. S. 602 (June 28, 1971).
    ***** LANDMARK CASE ***** but at least partly *OVERRULED* by Agostini v. Felton, 521 U. S. 203 (June 23, 1997), and much criticized both before and after that case, primarily on the grounds of the "third prong" involving a judgment as to whether or not there were "excessive entanglements," the portion overruled by Agostini, supra.

    Chief Justice Burger (with Justices Black, Douglas, Harlan, Stewart, Marshall (as to 2 out of 3 cases considered), and Blackmun) struck down statutes allowing private religious schools to have some or all of the salaries of certain teachers paid by the states. The Court also formulated the so-called Lemon test as a tool for analyzing these and other similar cases.

    Justice Douglas (with Justices Black and Marshall) concurred, conducting a lengthy review of the facts and historical developments, ending with "the taxpayers' forced contribution to the parochial schools in the present cases violates the First Amendment."

    Justice Marshall concurred in 2 of 3 cases, and "while intimating no view as to the continuing vitality of [Everson v. Board of Education, 330 U.S. 1 (Feb. 10, 1947)], concurs in the opinion of Justice Douglas.

    Justice Brennan concurred, but took issue with various statements in the various opinions as violating this fundamental rule: "What the Framers meant to foreclose, and what our decisions under the Establishment Clause have forbidden, are those involvements of religious with secular institutions which (a) serve the essentially religious activities of religious institutions; (b) employ the organs of government for essentially religious purposes; or (c) use essentially religious means to serve governmental ends, where secular means would suffice."

    Justice White concurred in part and dissented in part, largely objecting to the failure to view the state statutes challenged in Lemon as equivalent to the federal statute challenged in Tilton, thereby requiring equivalent results.

  • Tilton v. Richardson, 403 U.S. 672 (June 28, 1971).

    Chief Justice Burger (with Justices Harlan, Stewart, and Blackmun) generally allowed the federal government to fund buildings and other facilities with "strings" attached prohibiting their use for religious purposes, but invalidated as an unconstitutional "establishment" of religion a 20-year limit on the duration of said "strings."

    Justice White concurred in the judgment in the same opinion stated above for Lemon v. Kurtzman, 403 U. S. 602 (June 28, 1971).

    Justice Douglas (with Justices Black and Marshall) dissented in part, objecting to the funding of facilities for religious institutions in the first instance, stating "I dissent not because of any lack of respect for parochial schools but out of a feeling of despair that the respect which through history has been accorded the First Amendment is this day lost."

    Justice Brennan dissented in the same opinion stated above for Lemon v. Kurtzman, 403 U. S. 602 (June 28, 1971).

  • Diffenderfer v. Central Baptist Church of Miami, Inc., 404 U.S. 412 (January 10, 1972).

    Per Curium A challenge to a tax exemption for a church parking lot which was used as a commercial parking lot during the week was essentially moot, given the subsequent repeal of the challenged statute and the enactment of new legislation. The judgment was vacated and remanded for further proceedings, during which the original plaintiffs would have the opportunity to challenge the new statute.

  • United States v. Christian Echoes National Ministry, Inc., 404 U.S. 561 (January 24, 1972).

    Per Curium The United States could not use the direct appeal mechanism to vest jurisdiction in the Supreme Court when the successful challenge to governmental action only effected a narrowing of the interpretation of a statute, not its invalidation, and the constitutional issues discussed by the District Court were only obliquely related to the case at hand. (The case involved an IRS revocation of 501(c)(3) status due to political activity, etc.)

  • Cruz v. Beto, 405 U.S. 319 (March 20, 1972).

    Per Curium The District Court must hold hearings and make findings as to the allegations of a prisoner, an alleged Buddhist, who was claiming religious discrimination against him.

    Justice Blackmun concurred in the result.

    Chief Justice Burger concurred in the result, noting the prisoner's complaint was marginal. "At most, Buddhist materials cannot be denied to prisoners if someone offers to supply them."

    Justice Rehnquist dissented, noting many problems in the particular circumstances of this case, including an allegedly frivolous complaint.

  • Wisconsin v. Yoder, 406 U.S. 205 (May 15, 1972).***** LANDMARK CASE ***** but at least partly limited by both Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (April 17, 1990) and City of Boerne v. Flores, 521 U. S. 507 (June 25, 1997) wherein the Supreme Court noted that "[t]he only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections."

    Chief Justice Burger (with Justices Brennan, Stewart, White, Marshall, and Blackmun) held that a parent's right to control their child's education, in combination with the parent's religious beliefs that education beyond the 8th grade would be harmful to those children, and proof that the children received valuable informal vocational training after completing the 8th grade, all operated to excuse those children from the State of Wisconsin's compulsory school attendance law requiring attendance until age 16.

    Justice Stewart (with Justice Brennan) concurred, denying that the issue raised in Part II of Justice Douglas' dissent had any validity.

    Justice White (with Justices Brennan and Stewart) concurred, noting that "I join the Court because the sincerity of the Amish religious policy here is uncontested, because the potentially adverse impact of the state requirement is great, and because the State's valid interest in education has already been largely satisfied by the eight years the children have already spent in school."

    Justice Douglas dissented in part, noting that the children should be given the right to have their own say in the matter.

  • Lemon v. Kurtzman, 411 U.S. 192 [Lemon II] (April 2, 1973).

    Chief Justice Burger (with Justices Blackmun, Powell, and Rehnquist) held that, after the decision for Lemon v. Kurtzman, 403 U. S. 602 (June 28, 1971), the District Court did not abuse its discretion in allowing the religious schools to collect reimbursements due to them up until the time of the decision rendered in that prior case. Essentially, the Court ruled that the sectarian schools had relied on the unconstitutional statute to their detriment and were thus entitled to payment.

    Justice White concurred in the judgment.

    Justice Douglas (with Justices Brennan and Stewart) dissented, noting "[t]here is as much a violation of the Establishment Clause of the First Amendment whether the payment from public funds to sectarian schools involves last year, the current year, or next year."

  • Norwood v. Harrison, 413 U.S. 455 (June 25, 1973).

    Chief Justice Burger (with Justices Stewart, White, Marshall, Powell, Blackmun, and Rehnquist) upheld a Mississippi law regarding the loan of textbooks to private sectarian schools with the proviso that "The District Court can appropriately direct the appellees to submit for approval a certification procedure under which any school seeking textbooks for its pupils may apply for participation on behalf of pupils. The certification by the school to the Mississippi Textbook Purchasing Board should, among other factors, affirmatively declare its admission policies and practices, state the number of its racially and religiously identifiable minority students and such other relevant data as is consistent with this opinion."

    Justices Douglas and Brennan concurred in the result.

  • Levitt v. Committee for Public Ed. & Religious Liberty, 413 U. S. 472 (June 25, 1973).

    Chief Justice Burger (with Justices Stewart, Powell, Blackmun, and Rehnquist) held as unconstitutional a New York program to reimburse sectarian schools with fixed sums of money to cover the costs of state mandated services, such as testing and record keeping.

    Justices Douglas, Brennan, and Marshall asserted that this result was mandated by the holding for Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756 (June 25, 1973) and Sloan v. Lemon, 413 U.S. 825 (June 25, 1973), infra.

    Justice White dissented (apparently on the same grounds as stated in his dissent for Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756 (June 25, 1973), infra.

  • Hunt v. McNair, 413 U.S. 734 (June 25, 1973).

    Justice Powell (with the Chief Justice and Justices Stewart, White, Blackmun, and Rehnquist) held that a state program to finance and lease back buildings at a sectarian college was constitutional in that it restricted buildings in this program from religious use and involved minimal supervision by the state to ensure compliance with the restrictions.

    Justice Brennan (with Justices Douglas and Marshall) dissented, preferring to hold the program as a violation of the Establishment Clause.

  • Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756 (June 25, 1973).

    Justice Powell (with Justices Douglas, Stewart, Brennan, Marshall, and Blackmun) held as violations of the Establishment Clause a series of aid programs designed to assist parents and private sectarian schools, including a program to help defray building maintenance expenses, a program to reimburse private school tuition for low-income families, and a program of income tax deductions for those not qualified under the tuition reimbursement scheme.

    Chief Justice Burger (with Justices White and Rehnquist) concurred in part and dissented in part, agreeing that the "maintenance and repair" provisions were unconstitutional, but disagreed as to the tuition reimbursement and tax provisions on the grounds of prior Supreme Court precedents, such as Everson v. Board of Education, 330 U.S. 1 (Feb. 10, 1947), Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236 (June 10, 1968), and Walz v. Tax Comm'n of New York City, 397 U.S. 664 (May 4, 1970).

    Justice Rehnquist (with the Chief Justice and Justice White) dissented, arguing along the same lines as the Chief Justice, supra.

    Justice White (in part with the Chief Justice and Justice Rehnquist) dissented, noting that "Under state law these children [in private schools] have a right to a free public education and it would not appear unreasonable if the State, relieved of the expense of educating a child in the public school, contributed to the expense of his education elsewhere."

  • Sloan v. Lemon, 413 U.S. 825 (June 25, 1973).

    Justice Powell (with Justices Douglas, Brennan, Stewart, Marshall, and Blackmun) held as unconstitutional a state system of reimbursement for private school tuition payments, following Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756 (June 25, 1973).

    Chief Justice Burger (with Justices White and Rehnquist) dissented (see Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756 (June 25, 1973) for the text).

    Justice White (with the Chief Justice and Justice Rehnquist) dissented (see Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756 (June 25, 1973) for the text).

  • Johnson v. Robison, 415 U.S. 361 (March 4, 1974).

    Justice Brennan (with the Chief Justice and Justices Stewart, White, Powell, Blackman, Marshall, and Rehnquist) held that benefits provided to military veterans, but which were withheld from those who performed alternative service based upon their status as conscientious objectors, did not unconstitutionally discriminate against said objectors due to their religious beliefs and did not deny members of their class the equal protection of the laws.

    Justice Douglas dissented, arguing that the unemployment compensation cases, such as Sherbert v. Verner, 374 U.S. 398 (June 17, 1963), should control, and thus benefits should be granted to conscientious objectors who performed their mandatory alternative service.

  • Wheeler v. Barrera, 417 U.S. 402 (June 10, 1974).

    Justice Blackmun (with the Chief Justice and Justices Brennan, Stewart, Powell, and Rehnquist) declined to assess the First Amendment issue with respect to so-called "Title I" educational funds provided to the state because the defendant school districts below had not yet implemented any such program for private schools and thus there was no actual program available for review.

    Justice Powell concurred, stating "I would have serious misgivings about the constitutionality of a statute that required the utilization of public school teachers in sectarian schools."

    Justice White concurred in the judgment, stating "I am pleasantly surprised by what appears to be a suggestion that federal funds may in some respects be used to finance nonsectarian instruction of students in private elementary and secondary schools."

    Justice Marshall concurred in the result.

    Justice Douglas dissented, preferring to explicitly rule in the context of this case that no public money could be spent to support a sectarian educational institution.

  • Meek v. Pittenger, 421 U. S. 349 (May 19, 1975).
    Totally *OVERRULED* by Mitchell v. Helms, _ U.S. _ (June 28, 2000).

    Justice Stewart (with Justices Blackmun, Powell, and as to all but Part III, Justices Douglas, Brennan, and Marshall) In Part III, the loan of textbooks to religious schools was upheld as "constitutionally indistinguishable from ... loan program upheld in" Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236 (June 10, 1968). This judgment was supported by the Chief Justice and Justices Stewart, Blackmun, Powell, Rehnquist, and White. In Part IV of the opinion, the loan of "dual use" instructional materials and equipment (i.e., projectors, etc.) which could be diverted to religious use was declared to be unconstitutional. In Part V of the opinion, the provision of "auxiliary services" (remedial and accelerated instruction, guidance counseling and testing, speech and hearing services) directly on the premises of religious schools, even though provided directly to students meeting certain objective criteria of need, was also declared to be unconstitutional. These final two holdings were supported by Justices Stewart, Blackmun, Powell, Douglas, Brennan, and Marshall.

    Justice Brennan (with Justices Douglas and Marshall) concurred in part and dissented in part, preferring to declare the textbook loan program unconstitutional and overrule Allen, supra.

    Chief Justice Burger concurred in the judgment in part and dissented in part, generally agreeing with the Rehnquist dissent, infra, while noting: "If the consequence of the Court's holding operated only to penalize institutions with a religious affiliation, the result would be grievous enough; nothing in the Religion Clauses of the First Amendment permits governmental power to discriminate against or affirmatively stifle religions or religious activity. [Citation.] But this holding does more: it penalizes children - children who have the misfortune to have to cope with the learning process under extraordinarily heavy physical and psychological burdens, for the most part congenital. This penalty strikes them not because of any act of theirs but because of their parents' choice of religious exercise."

    Justice Rehnquist (with Justice White) concurred in the judgment in part and dissented in part, preferring to affirm the judgment of the District Court, which struck down only the loan of "dual use" instructional materials and equipment. "Positing an obligation on the State to educate its children, which every State acknowledges, it should be wholly acceptable for the State to contribute to the secular education of children going to sectarian schools rather than to insist that if parents want to provide their children with religious as well as secular education, the State will refuse to contribute anything to their secular training." (Quoting from the dissent of Justice White in Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756 (June 25, 1973).

  • Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (June 21, 1976).

    Justice Brennan (with Justices Stewart, White, Marshall, Blackmun, and Powell) overturned a judgment by the Supreme Court of Illinois to the effect that the upper echelon(s) of the Serbian Eastern Orthodox Church had violated its own rules in the removal of a bishop and the reorganization of its churches in the United States and Canada because, as a hierarchical church, the decision of the ruling hierarchy is entitled to deference when any dispute of this sort lands in court. "In short, the First and Fourteenth Amendments permit hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters. When this choice is exercised and ecclesiastical tribunals are created to decide disputes over the government and direction of subordinate bodies, the Constitution requires that civil courts accept their decisions as binding upon them."

    Justice White concurred, noting: "Major predicates for the Court's opinion are that the Serbian Orthodox Church is a hierarchical church and the American-Canadian Diocese, involved here, is part of that Church. These basic issues are for the courts' ultimate decision, and the fact that church authorities may render their opinions on them does not foreclose the courts from coming to their independent judgment."

    Chief Justice Burger concurred in the judgment.

    Justice Rehnquist (with Justice Stevens) dissented, refusing to see why a secular court could not apply written church law in the same manner as a properly empanelled church court.

  • Roemer v. Maryland Public Works Board, 426 U.S. 736 (June 21, 1976).

    Justice Blackmun (with the Chief Justice and Justice Powell) found that there was no constitutional violation in a Maryland system of non-categorical grants to colleges for non-sectarian educational purposes.

    Justice White (with Justice Rehnquist) concurred in the judgment, refusing to accept the test of Lemon v. Kurtzman, 403 U. S. 602 (June 28, 1971). "The threefold test of Lemon I imposes unnecessary, and, as I believe today's plurality opinion demonstrates, superfluous tests for establishing 'when the State's involvement with religion passes the peril point' for First Amendment purposes."

    Justice Brennan (with Justice Marshall) dissented, preferring to invalidate all school aid to sectarian institutions.

    Justice Stewart dissented, preferring to distinguish the holding for Tilton v. Richardson, 403 U.S. 672 (June 28, 1971) by noting that the institutions for the instant case had compulsory theology courses taught by clerics for the sponsoring religious order as opposed to an academically neutral set of mandatory theology courses.

    Justice Stevens dissented, stating "My views are substantially those expressed by MR. JUSTICE BRENNAN. However, I would add emphasis to the pernicious tendency of a state subsidy to tempt religious schools to compromise their religious mission without wholly abandoning it. The disease of entanglement may infect a law discouraging wholesome religious activity as well as a law encouraging the propagation of a given faith."

  • Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (June 16, 1977).

    Justice White (with the Chief Justice and Justices Stewart, Blackmun, Powell, Rehnquist, and Stevens) held that a union employee, who was prevented by the contractually agreed seniority system from avoiding work on his Saturday Sabbath, was not subjected to unlawful discrimination on the basis of religious beliefs.

    Justice Marshall (with Justice Brennan) dissented, noting "Today's decision deals a fatal blow to all efforts under Title VII to accommodate work requirements to religious practices. The Court holds, in essence, that although the EEOC regulations and the Act state that an employer must make reasonable adjustments in his work demands to take account of religious observances, the regulation and Act do not really mean what they say. An employer, the Court concludes, need not grant even the most minor special privilege to religious observers to enable them to follow their faith. As a question of social policy, this result is deeply troubling, for a society that truly values religious pluralism cannot compel adherents of minority religions to make the cruel choice of surrendering their religion or their job. And as a matter of law today's result is intolerable, for the Court adopts the very position that Congress expressly rejected in 1972, as if we were free to disregard congressional choices that a majority of this Court thinks unwise."

  • Wolman v. Walter, 433 U. S. 229 (June 24, 1977).
    Totally *OVERRULED* by Mitchell v. Helms, _ U.S. _ (June 28, 2000).

    Justice Blackmun (partly with Justices Stewart and Stevens as to 5 of 8 parts, plus participation of the Chief Justice and Justices Brennan, Marshall, and Powell) "In summary, we hold constitutional those portions of the Ohio statute authorizing the State to provide nonpublic school pupils with books, standardized testing and scoring, diagnostic services, and therapeutic and remedial services. We hold unconstitutional those portions relating to instructional materials and equipment and field trip services."

    Chief Justice Burger dissented in part (from Parts VII and VIII, involving the findings of unconstitutionality for providing secular text books and bus rides for field trips; he would have found all of the aid to be constitutional).

    Justice Brennan concurred in part and dissented in part, preferring to hold all of the aid to be unconstitutional.

    Justice Marshall concurred in part and dissented in part, similarly preferring to hold all aid to be unconstitutional, and preferring to resolve the tension between Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236 (June 10, 1968) and Meek v. Pittenger, 421 U. S. 349 (May 19, 1975) by overruling Allen, supra.

    Justice Stevens concurred in part and dissented in part, preferring the "bright line" rule of Everson v. Board of Education, 330 U.S. 1 (Feb. 10, 1947), wherein Justice Black declared "No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion."

    Justice Powell concurred in part, concurred in the judgment in part, and dissented in part, bemoaning the arbitrariness of the Supreme Court's decisions and preferring the distinct line of no aid at all to decisions viewed as arbitrary. While he went along with the Court's judgment with respect to aid for instructional materials, he would have found all of the other aid to be constitutional.

    Justices White and Rehnquist concurred in the judgment in part and dissented with the judgment in part, basically asserting that all of the challenged aid should be allowed as constitutional.

  • New York v. Cathedral Academy, 434 U.S. 125 (December 6, 1977).

    Justice Stewart (with Justices Brennan, Marshall, Blackmun, Powell, and Stevens) held that a state law, enacted to provide an equitable remedy for sectarian schools who had detrimentally relied upon a promise of payment made in a statute previously declared unconstitutional, was itself unconstitutional, and thus no payments of reimbursable expenses could be allowed.

    Chief Justice Burger (with Justice Rehnquist) dissented, believing "that this case is controlled by the principles established in [Lemon v. Kurtzman, 411 U.S. 192 [Lemon II] (April 2, 1973)], and would therefore affirm the judgment of the Court of Appeals of New York."

    Justice White dissented: "Because the Court continues to misconstrue the First Amendment in a manner that discriminates against religion and is contrary to the fundamental educational needs of the country."

  • McDaniel v. Paty, 435 U.S. 618 (April 19, 1978).

    Chief Justice Burger (with Justices Powell, Rehnquist, and Stevens) held that a state law barring ministers from holding public office was an unconstitutional restraint upon the free exercise of religion as it made the ability to serve in public office conditional upon the abandonment of the religious office.

    Justice Brennan (with Justice Marshall) concurred in the judgment on the grounds that the challenged statute violated both the Establishment Clause and the Free Exercise Clause.

    Justice Stewart concurred in the judgment, agreeing with Justice Brennan that

    • Torcaso v. Watkins, 367 U.S. 488 (June 19, 1961) controlled the instant case.

      Justice White concurred in the judgment, grounding his analysis in the Equal Protection Clause instead of the First Amendment.

  • NLRB v. Catholic Bishop of Chicago, 440 U. S. 490 (March 21, 1979).

    Chief Justice Burger (with Justices Stewart, Powell, Rehnquist, and Stevens) held that the National Labor Relations Board could not exercise jurisdiction over a labor dispute between lay teachers and church-run schools, holding that the First Amendment prevented that sort of interference in church affairs absent Congress explicitly providing such authority, which did not appear herein.

    Justice Brennan (with Justices White, Marshall, and Blackmun) dissented, holding that the alleged "canon of statutory construction" used by the majority was newly invented and not justified by the case at hand.

  • Jones v. Wolf, 443 U.S. 595 (July 2, 1979).

    Justice Blackmun (with Justices Brennan, Marshall, Rehnquist, and Stevens) held that in a property dispute where a congregation had split into a majority and a minority faction, it was not clear that Georgia had applied the correct law, so the Supreme Court vacated and remanded to Georgia for it to consider whether or not the holding of the superior religious body should be followed in lieu of following the neutral property laws of Georgia.

    Justice Powell (with the Chief Justice and Justices Stewart and White) dissented, objecting to the new analytical approach which will make it far more difficult for courts to adjudicate these disputes, and will furthermore require judicial intrusion into matters for which intrusion is highly undesirable.

  • Committee for Public Ed. and Religious Liberty v. Regan, 444 U. S. 646 (February 20, 1980).

    Justice White (with the Chief Justice and Justices Stewart, Powell, and Rehnquist) held that a revised statute which now provided for auditing of state funds paid to private religious schools to ensure proper use of those funds was not unconstitutional, as its predecessor had been declared in Levitt v. Committee for Public Ed. & Religious Liberty, 413 U. S. 472 (June 25, 1973).

    Justice Blackmun (with Justices Brennan and Marshall) dissented on the grounds that the aid was a "direct subsidy" to the religious schools, and thus clearly unconstitutional.

    Justice Stevens dissented, preferring "that the entire enterprise of trying to justify various types of subsidies to nonpublic schools should be abandoned."

  • McKeesport Area School District v. Pennsylvania Department of Ed., 446 U.S. 970 (June 2, 1980).

    Per Curium The appeal is dismissed for want of a substantial federal question.

    Justice White (with Justice Rehnquist) wrote at length to explain why this disposition was proper. In essence, in the prior case of School District of Pittsburgh v. Pennsylvania Dept. of Education, 443 U.S. 901 (1979), involving an identical challenge to the same statute, the Supreme Court found that there was no substantial federal question in the issue presented by that appeal, justifying the same result herein.

    Justice Blackmun (with Justice Brennan) concurred, explicitly stating that he did so only if the provision regarding field trips was not properly before the Court.

    Justice Stevens "would note probable jurisdiction and set case for oral argument."

  • Harris v. McRae, 448 U.S. 297 (June 30, 1980).

    Justice Stewart (with the Chief Justice and Justices White, Powell, and Rehnquist) held that the so-called "Hyde Amendment" (which limited or eliminated federal Medicaid funding for abortions) did not violate the Establishment Clause, and that the complaining individuals lacked standing to challenge under the Free Exercise clause, among other issues, and thus the "Hyde Amendment" was fully constitutional.

    Justice White concurred, taking issue with Justice Stevens' dissent, and noting that the free choice of women remained unfettered, even though part of the government had decided not to fund one of their available and lawful options.

    Justice Brennan (with Justices Marshall and Blackmun) dissented, holding that the "Hyde Amendment" inserted government coercion into the very zone of privacy which

    • Roe v. Wade, 410 U.S. 113 (January 22, 1973) was designed to protect.

      Justice Marshall dissented, holding that "the Federal Government has taken upon itself the burden of financing practically all medically necessary expenditures. One category of medically necessary expenditure has been singled out for exclusion, and the sole basis for the exclusion is a premise repudiated for purposes of constitutional law in Roe v. Wade. The consequence is a devastating impact on the lives and health of poor women. I do not believe that a Constitution committed to the equal protection of the laws can tolerate this result."

      Justice Blackmun dissented, citing his prior similar dissents and bemoaning the consequences for society of forcing poor women to have additional children.

      Justice Stevens dissented, noting that the government "may not create exceptions for the sole purpose of furthering a governmental interest that is constitutionally subordinate to the individual interest that the entire program was designed to protect.

  • Stone v. Graham, 449 U.S. 39 (November 17, 1980).

    Per Curium a state law which required schools to post a copy of the Ten Commandments on the walls of schools "has no secular legislative purpose" and is thus a violation of the Establishment Clause, citing to (among other authorities) Lemon v. Kurtzman, 403 U. S. 602 (June 28, 1971).

    The Chief Justice (with Justice Rehnquist) objected to summary reversal, preferring a full plenary review.

    Justice Stewart also objected to summary reversal, contending that the lower court was entirely correct in its review.


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The text of this compilation is Copyright © 2000-2001, by William A. Schultz. All Rights Reserved. Used by permission of the author.

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