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Bill Schultz Scotus Cases4

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

by Bill Schultz

From 1981 through the Present

Table of Contents

 

  • Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707 (April 6, 1981). Later, in 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) 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.'”

    Chief Justice Burger (with Justices Brennan, Stewart, White, Marshall, Powell, Stevens, and mostly Blackmun) held that a Jehovah’s Witness who refused to perform work directly related to weapons production, and who then quit when no non-weapons jobs were offered to him, must be granted unemployment insurance compensation after he was involuntarily transferred from his previous non-weapons-related job.

    Justice Blackmun concurred in part and concurred in the result.

    Justice Rehnquist dissented, noting that the modern tension between the “Establishment” and “Free Exercise” clauses is due to: 1) the explosion of social welfare programs; 2) the extension of the First Amendment to the states by operation of the Fourteenth Amendment; and 3) the overly expansive interpretation of both clauses by the U. S. Supreme Court, leaving virtually no room for government to craft legislation which would pass both constitutional tests, thus he would narrow both interpretations and deny relief herein based upon the construction of the Free Exercise Clause in Braunfeld v. Brown, 366 U.S. 599 (May 29, 1961) and also using Justice Stewart’s dissent for Abington School District v. Schempp, 374 U.S. 203, 218, 220 (June 17, 1963) for construing the Establishment Clause.

  • Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U.S. 640 (June 22, 1981).

    Justice White (with the Chief Justice and Justices Stewart, Powell, and Rehnquist) held that a state statute requiring that sales of merchandise, distribution of literature, and donations to organizations could only occur at booths which were allocated in a non-discriminatory manner was not a violation of the Free Exercise Clause with respect to the religious practices of the Krishna movement.

    Justice Brennan (with Justices Marshall and Stevens) concurred in part and dissented in part, refusing to accept the prohibition on free distribution of literature as being consistent with the Constitution, and he would have thus struck down that one provision.

    Justice Blackmun concurred in part and dissented in part, reaching the same conclusion as Justice Brennan, but with different reasoning.

  • Widmar v. Vincent, 454 U. S. 263 (December 8, 1981).

    Justice Powell (with the Chief Justice and Justices Brennan, Marshall, Blackmun, Rehnquist, and O’Connor) held that a university, having created a forum “generally open for the use of all student groups,” could not exclude from that forum a group whose speech was primarily religious in nature.

    Justice Stevens concurred in the judgment, but took issue with the use of the terms “compelling state interest” and “open forum” as possibly undermining academic freedom.

    Justice White dissented, holding that the state, as the property owner, had a right to prohibit the religious use of its facilities as a minimal burden was thus placed upon the religious students to go into the community to attend church services.

  • Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 (January 12, 1982).

    Justice Rehnquist (with the Chief Justice and Justices White, Powell, and O’Connor) held that the plaintiffs lacked standing to challenge a gift of surplus governmental real estate to a private Christian college because the disposition occurred under the “Property Clause” of the Constitution and thus had nothing to do with taxes, eliminating the right of taxpayers in general to challenge the actions of the government.

    Justice Brennan (with Justices Marshall and Blackmun) dissented, holding that the majority had misapplied its own precedent on standing, thus failing to reach and decide the legitimate controversy which had brought them to the Court in the first instance.

    Justice Stevens dissented, noting that in an Establishment Clause challenge, there was no valid distinction to be made between Congress acting under the Spending Clause or the Property Clause, and thus standing should properly be conferred.

  • United States v. Lee, 455 U.S. 252 (February 23, 1982).

    Justice Burger (with Justices Brennan, White, Marshall, Blackmun, Powell, Rehnquist, and O’Connor) held that an Amish farmer who employed other Amish on his farm was not exempt from the Social Security system in spite of the religious beliefs of himself and his employees that they must necessarily supply their own benefits of this sort to each other, and in spite of a statutory exemption for “self employed” Amish, thus the farmer was required to pay both the employer and employee portions of the Social Security tax.

    Justice Stevens concurred in the judgment, but disagreed with the standard of proof, noting that “it is the objector who must shoulder the burden of demonstrating that there is a unique reason for allowing him a special exemption from a valid law of general applicability.”

  • Larson v. Valente, 456 U.S. 228 (April 21, 1982).

    Justice Brennan (with Justices Marshall, Blackmun, Powell, and Stevens) held that a law requiring religious groups that received more than 50% of their income from non-member contributions to comply with certain administrative requirements was unconstitutional, as it amounted to a rule which preferred one religious denomination over another.

    Justice Stevens concurred, but noted certain misgivings with the procedural posture of the case.

    Justice White (with Justice Rehnquist) dissented on the merits, noting the lack of a proper factual basis for making the decision which the Supreme Court rendered, and that the Supreme Court was proceeding upon a different theory than that followed in the Court of Appeal, while both reviewing courts evaluated different theories than had the trial court.

    Justice Rehnquist (with the Chief Justice and Justices White and O’Connor) dissented on the issue of standing, holding that there were too many unlitigated issues still pending in the District Court to give standing to the Supreme Court challenge of the constitutionality of the statute in question.

  • Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (December 13, 1982).

    Chief Justice Burger (with Justices Brennan, White, Marshall, Blackmun, Powell, Stevens, and O’Connor) held that a law granting churches a right to object to the issuance of a liquor licenses and thereby cause the denial of said license was an unconstitutional “Establishment” of religion because it delegated governmental powers to religious institutions.

    Justice Rehnquist dissented on the ground that a “flat ban” was concededly not unconstitutional, and thus this less restrictive ban should have been upheld since it then allowed the churches to determine for themselves if the presence of a liquor license would be appropriate or not.

  • Bob Jones University v. United States, 461 U.S. 574 (May 24, 1983).

    Chief Justice Berger (with Justices Brennan, White, Marshall, Black, Stevens, O’Connor, and in Part III, Powell) held that certain sectarian schools, which had been denied tax exempt status under Section 501(c)(3) of the Internal Revenue Code because they practiced certain racially discriminatory policies, could not shield themselves from that denial by invocation of the “Free Exercise Clause” of the Constitution.

    Justice Powell concurred in part and concurred in the judgment, agreeing that there was no violation of the “Free Exercise Clause,” but expressing various concerns about the sweeping language used by the Court and the fact that Congress, not the courts or the IRS, ought to be codifying these various questions of public policy.

    Justice Rehnquist dissented on the ground that Congress had not implemented this change in the law, and it was thus improper for the courts to construe this provision into being when Congress had not acted to impose it.

  • Mueller v. Allen, 463 U. S. 388 (June 29, 1983).

    Justice Rehnquist (with the Chief Justice and Justices White, Powell, and O’Connor) held that a Minnesota statute allowing income tax deductions for “tuition, textbooks and transportation” for their children attending an elementary or secondary school was constitutional. The fact that many beneficiaries were sending their children to religious schools (as opposed to secular private schools or public schools) did not invalidate the tax. The Court distinguished its holding in Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756 (June 25, 1973).

    Justice Marshall (with Justices Brennan, Blackmun, and Stevens) dissented, finding that the tax breaks were at least an indirect subsidy paid to or for the benefit of religion, and construed as such, it was an unconstitutional benefit for the state to grant.

  • Marsh v. Chambers, 463 U.S. 783 (July 5, 1983).

    Chief Justice Berger (with Justices White, Blackmun, Powell, Rehnquist, and O’Connor) held that the Legislature of Nebraska could have a chaplain paid out of public funds offer prayers primarily in the Judeo-Christian tradition as part of the opening and/or closing ceremonies of the legislative sessions in Nebraska without violating the Establishment Clause of the Constitution.

    Justice Brennan (with Justice Marshall) dissented, stating “The Court makes no pretense of subjecting Nebraska’s practice of legislative prayer to any of the formal ‘tests’ that have traditionally structured our inquiry under the Establishment Clause. That it fails to do so is, in a sense, a good thing, for it simply confirms that the Court is carving out an exception to the Establishment Clause rather than reshaping Establishment Clause doctrine to accommodate legislative prayer.” He then went on to analyze at length why legislative prayer was unconstitutional, and ended with his personal assessment that the nation would have been better off with the opposite result.

    Justice Stevens dissented, noting that it is the majority who picks the chaplain, and that, accordingly, they tend to express or represent majoritarian religious traditions, thus unconstitutionally marginalizing minority religious viewpoints.

    Personal Comments: This case seems to have largely turned on its similarities with the practices of Congress in an unbroken stream from before the Constitution was adopted (as the Continental Congress) and right up to the present, thereby strongly arguing that this sort of practice was never intended to be viewed as a violation of the Establishment Clause. In later cases, this opinion is frequently cited in support of the notion that the test developed in Lemon v. Kurtzman, 403 U. S. 602 (June 28, 1971) cannot be reconciled with this holding, and thus the test itself must necessarily be wrong in the first instance. On the other hand, if the test is correct (and several Justices seem to think it is not), then this decision itself is manifestly wrong.

  • Lynch v. Donnelly, 465 U.S. 668 (March 5, 1984).

    Chief Justice Burger (with Justices White, Powell, Rehnquist, and O’Connor) held that a city-owned crèche, which was being displayed as part of a much larger display of secular items, and which had been similarly displayed for four decades, did not violate the Establishment Clause.

    Justice O’Connor concurred, suggesting an alternative test of either “excessive entanglements,” involving religions too closely with the exercise of governmental power, or “endorsement,” meaning, in this case, either favoring or disfavoring religion and/or, at the same time, disadvantaging the alternative point of view.

    Justice Brennan (with Justices Marshall, Blackmun, and Stevens) dissented, holding that the crèche was an impermissible endorsement of a particular religion.

    Justice Blackmun (with Justice Stevens) dissented, asserting that the instant decision made light of proper precedents.

  • Scarsdale v. McCreary, 471 U.S. 83 (March 27, 1985).

    739 F.2d 716, affirmed by an equally divided Court. (The case apparently involved a crèche display.)

  • Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (April 23, 1985).

    Justice White (with a unanimous Court) held that a religious nonprofit corporation, which ran certain businesses through the use of “drug addicts, derelicts, or criminals” whom they rehabilitated, was subject to the provisions of the Fair Labor Standards Act, 52 Stat. 1060, as amended, 29 U.S.C. 201 et seq., and that imposing the provisions on said religious corporation did not violate the Free Exercise clause of the First Amendment.

  • Wallace v. Jaffree, 472 U.S. 38 (June 4, 1985).

    Justice Stevens (with Justices Brennan, Marshall, Blackmun, and Powell) held that there was nothing wrong with a statute requiring a 1-minute period of silence for “meditation,” but unanimously struck down a statute providing for the voluntary recital of a specified prayer and reached this mixed decision on a third law which provided for a 1-minute period for either “meditation” or voluntary prayer, the majority holding that this, too, was unconstitutional.

    Justice Powell concurred, responding to various criticisms of the so-called “Lemon test of Lemon v. Kurtzman, 403 U. S. 602 (June 28, 1971).

    Justice O’Connor concurred in the judgment, offering various critiques of the Lemon test.

    Chief Justice Burger dissented, noting that he saw no constitutional threat at all from the words “or voluntary prayer” added to Alabama’s “moment of silence” law.

    Justice White dissented along the same lines as the Chief Justice and Justice Rehnquist.

    Justice Rehnquist dissented, with a lengthy explanation of how the Establishment Clause came to be inserted into the Constitution and what it most likely meant to people of that time, finally concluding that the challenged statute clearly did not involve circumstances which would have triggered action in the minds of those who authored or approved the clause.

  • Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (June 26, 1985).

    Chief Justice Burger (with Justices Brennan, White, Marshall, Blackmun, Powell, Stevens, and O’Connor) held that a “Connecticut statute, by providing Sabbath observers with an absolute and unqualified right not to work on their chosen Sabbath, violates the Establishment Clause,” following Lemon v. Kurtzman, 403 U. S. 602 (June 28, 1971)

    Justice O’Connor (with Justice Marshall) concurred, noting “I do not read the Court’s opinion as suggesting that the religious accommodation provisions of Title VII of the Civil Rights Act of 1964 are similarly invalid.”

    Justice Rehnquist dissented (without a written opinion).

  • School Dist. of Grand Rapids v. Ball, 473 U.S. 373 (July 1, 1985).

    Almost totally *OVERRULED* by Agostini v. Felton, 521 U. S. 203 (June 23, 1997) and other intervening cases.

    Justice Brennan (with Justices Marshall, Blackmun, Powell, and Stevens) held that public employees, acting as part of the Community Education and Shared Time programs offered in the nonpublic schools of Grand Rapids, Michigan, could not be assigned to teach in classrooms of private religious schools.

    Chief Justice Burger concurred in part and dissented in part, holding that the Community Education program was unconstitutional, but that the Shared Time program was not, complaining that this decision actually exhibits hostility to religion rather than neutrality, and imposes a tremendous human cost on society (as per his dissent in Aguilar v. Felton, 473 U.S. 402 (July 1, 1985), below).

    Justice O’Connor concurred in part and dissented in part, similar to Chief Justice Berger, above, also upholding the constitutionality of the Shared Time program as per her dissent for Aguilar v. Felton, 473 U.S. 402 (July 1, 1985), below.

    Justice White dissented, citing to his prior dissents for Lemon v. Kurtzman, 403 U. S. 602 (June 28, 1971) and Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756 (June 25, 1973).

    Justice Rehnquist dissented, for basically those reasons stated in his dissent for Wallace v. Jaffree, 472 U.S. 38, 53 (June 4, 1985).

  • Aguilar v. Felton, 473 U.S. 402 (July 1, 1985).

    Totally *OVERRULED* by Agostini v. Felton, 521 U. S. 203 (June 23, 1997) and other intervening cases.

    Justice Brennan (with Justices Marshall, Blackmun, Powell, and Stevens) held that public employees, acting under Title I of the Elementary and Secondary Education Act of 1965, could not be assigned to teach in classrooms of private religious schools, failing to find any distinction with School Dist. of Grand Rapids v. Ball, 473 U.S. 373 (July 1, 1985), as decided above.

    Justice Powell concurred, emphasizing additional reasons in support of the judgment.

    Chief Justice Burger dissented, complaining that this decision actually exhibits hostility to religion rather than neutrality, and imposes a tremendous human cost on society.

    Justice White dissented, citing to his prior dissents for Lemon v. Kurtzman, 403 U. S. 602 (June 28, 1971) and Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756 (June 25, 1973).

    Justice Rehnquist dissented, noting that the court found itself in a “Catch-22” paradox of its own creation, as per his dissent for Wallace v. Jaffree, 472 U.S. 38, 53 (June 4, 1985).

    Justice O’Connor (with Justice Rehnquist, as to Parts II and III) dissented, conducting her own analysis under the precedent of Lemon v. Kurtzman, 403 U. S. 602 (June 28, 1971).

  • Witters v. Washington Dept. of Services for Blind, 474 U.S. 481 (January 27, 1986).

    Justice Marshall (with the Chief Justice and Justices Brennan, White, Blackmun, Powell, Rehnquist, Stevens, and partially O’Connor) held that the Establishment Clause was not violated by the provision of vocational rehabilitation services to a blind person seeking to pursue a career as a pastor, missionary, or youth director.

    Justice White concurred, stating that he “remain[s] convinced that the Court’s decisions finding constitutional violations where a State provides aid to private schools or their students misconstrue the Establishment Clause and disserve the public interest.”

    Justice Powell (with the Chief Justice and Justice Rehnquist) concurred, analyzing this case under Mueller v. Allen, 463 U. S. 388 (June 29, 1983) and finding support therein for the result herein.

    Justice O’Connor concurred in part and concurred in the judgment, preferring Justice Powell’s reasoning for the reasoning stated by the majority.

  • Goldman v. Weinberger, 475 U.S. 503 (March 25, 1986).

    Justice Rehnquist (with the Chief Justice and Justices White, Powell, and Stevens) held that the Free Exercise clause did not support the claim of a military service member that he should be allowed to wear a Jewish yarmulke while in uniform since the military is a special case, and military regulations are entitled to “great deference.”

    Justice Stevens (with Justices White and Powell) concurred, noting that while it would be easy to accommodate a yarmulke in these circumstances, if a Sikh or a member of another religion with a far more obtrusive requirement for accommodation were to be allowed to request this same sort of exception on constitutional grounds, the military system of uniforms might end up thoroughly broken.

    Justice Brennan (with Justice Marshall) dissented, objecting to the failure of the Court to set any standards for judicial review of such matters, and then noting that: “Under any meaningful level of judicial review, Simcha Goldman should prevail.”

    Justice Blackmun dissented, noting that the government should be allowed to prove various costs associated with making an exception to a rule under circumstances such as these, but then noting that the government has made no showing of any costs whatsoever with respect to the current matter.

    Justice O’Connor (with Justice Marshall) dissented, also noting that the Supreme Court should articulate the standard for a Free Exercise claim in the military context and then analyze the current case in light of that standard.

    Later, it appears that this matter was ultimately resolved favorably to Jews, since in Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687 (June 27, 1994), in the concurrence by Justice Kennedy, one of the religious “accommodations” noted therein was this one: “Dept. of Air Force, Reg. 35-10, [section] 2-28(b)(2) (Apr. 1989) (‘Religious head coverings are authorized for wear while in uniform when military headgear is not authorized. . . . Religious head coverings may be worn underneath military headgear if they do not interfere with the proper wearing, functioning, or appearance of the prescribed headgear. . . . For example, Jewish yarmulkes meet this requirement if they do not exceed 6 inches in diameter’)”

  • Bender v. Williamsport Area School Dist., 475 U.S. 534 (March 25, 1986).

    Justice Stevens (with Justices Brennan, Marshall, Blackmun, and O’Connor) in a case of alleged religious discrimination (involving the refusal of a school to allow the formation of a religious club), dismissed the appeal of a school board member on the grounds that he had no personal standing to pursue the appeal, noting that the parties had already remedied the alleged discrimination.

    Justice Marshall concurred, noting that the defect in jurisdiction could not be cured “through a belated nontestimonial statement by Mr. Youngman that he is a parent of a child in the Williamsport Area High School.”

    Chief Justice Berger (with Justices White and Rehnquist) dissented, holding that standing to appeal did exist, and on the merits, held that governmental neutrality towards religion demands equal treatment for religion on school campuses.

    Justice Powell dissented, asserting that the case was controlled by Widmar v. Vincent, 454 U. S. 263 (December 8, 1981).

  • Bowen v. Roy, 476 U.S. 693 (June 11, 1986).

    Chief Justice Burger (with Justices Powell and Rehnquist, and as to Parts I and II, Brennan, Marshall, Blackmun, Stevens, and O’Connor) held that a statute requiring the use of Social Security numbers for administration of welfare benefits did not violate the Free Exercise Clause in spite of the objection of certain native Americans that assigning such numbers for their young daughter violated their religious beliefs (and in a plurality portion of this opinion, justified the same conclusion on similar, but more specific, grounds).

    Justice Blackmun concurred in part, refusing to fault the government for going ahead and obtaining a Social Security Number for their child, and indicating that it would be wrong to force the parents to use that number, which is already known to the government, although agreeing that the injunction issued by the District Court went too far against the government.

    Justice Stevens concurred in part and concurred in the result, finding that the late discovery of the issuance of the daughter’s Social Security Number (on the last day of the trial, it was discovered that the number had been issued at birth) substantially changed the posture of the parties, and thus the Supreme Court should not be reviewing the case at this time.

    Justice O’Connor (with Justices Brennan and Marshall) concurred in part and dissented in part, objecting to the new test proposed by the Chief Justice in the plurality portion of his opinion.

    Justice White dissented on the ground that Sherbert v. Verner, 374 U.S. 398 (June 17, 1963) and Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707 (April 6, 1981) control the instant case.

    Personal Comments: This case came very close to doing what Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (April 17, 1990) did four years later.

  • Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136 (February 25, 1987).

    Justice Brennan (with Justices White, Marshall, Blackmun, O’Connor, and Scalia) held that a state may not refuse unemployment benefits to a person who was fired for refusing to work on her Sabbath, citing the prior cases of Sherbert v. Verner, 374 U.S. 398 (June 17, 1963) and Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707 (April 6, 1981).

    Justice Powell concurred in the judgment, objecting to the language undercutting the Bowen v. Roy, 476 U.S. 693 (June 11, 1986) opinion issued only the previous year.

    Justice Stevens concurred in the judgment, writing (more or less) that, in fact, this case follows all three precedents discussed above.

    Chief Justice Rehnquist dissented, citing to his dissent in Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707 (April 6, 1981).

    Later, in 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) 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.'”

  • Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221 (April 22, 1987).

    Justice Marshall (with Justices Brennan, White, Blackmun, Powell, O’Connor, and partly Stevens) held that a tax on a magazine when other publications were exempt (newspapers and “religious” publications, among others) was an unconstitutional abridgment of the freedom of the press, relying upon Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575 (March 29, 1983).

    Justice Stevens concurred in part and concurred in the judgment, objecting to “the proposition that ‘government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.'”

    Justice Scalia (with the Chief Justice) dissented, objecting to the concept that denial of tax exemptions is the equivalent of regulation of speech.

  • O’Lone v. Estate of Shabazz, 482 U.S. 342 (June 9, 1987).

    Chief Justice Rehnquist (with Justices White, Powell, O’Connor, and Scalia) held that, under prison policies implemented to address valid concerns, Muslim prisoners may kept away from their regular Friday prayer service without offense to the Free Exercise Clause.

    Justice Brennan (with Justices Marshall, Blackmun, and Stevens) dissented, arguing that this matter had not been litigated under a new precedent and that it should then have been returned to the District Court for appropriate litigation in light of that intervening holding.

  • Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569 (June 15, 1987).

    Justice O’Connor (with a unanimous Court) held that a regulation banning “all First Amendment activity” within an airport terminal was “substantially overbroad, and is not fairly subject to a limiting construction.”

    Justice White (with the Chief Justice) concurred, suggesting “that it should not be taken as indicating that a majority of the Court considers the Los Angeles International Airport to be a traditional public forum.”

  • Edwards v. Aguillard, 482 U.S. 578 (June 19, 1987).

    Justice Brennan (with Justices Marshall, Powell, Blackmun, Stevens, and mostly O’Connor) held that “[t]he Louisiana Creationism Act advances a religious doctrine by requiring either the banishment of the theory of evolution from public school classrooms or the presentation of a religious viewpoint that rejects evolution in its entirety. The Act violates the Establishment Clause of the First Amendment because it seeks to employ the symbolic and financial support of government to achieve a religious purpose.

    Justice Powell (with Justice O’Connor) concurred, noting “that nothing in the Court’s opinion diminishes the traditionally broad discretion accorded state and local school officials in the selection of the public school curriculum.”

    Justice White concurred in the judgment, noting a usual deference to the lower courts in their constructions of state law, and seeing no reason to depart from that procedure herein.

    Justice Scalia (with the Chief Justice) dissented, on the ground that it was procedurally way too early for the U. S. Supreme Court to decide this matter; the appellants may well be correct in their assertion that “creation science” “is a collection of educationally valuable scientific data that has been censored from classrooms by an embarrassed scientific establishment.”

  • Corporation of Presiding Bishop of Church of Jesus Christ of Later-day Saints v. Amos, 483 U.S. 327 (June 24, 1987).

    Justice White (with the Chief Justice and Justices Powell, Stevens, and Scalia) held that a federal law which grants religious organizations which operate secular nonprofit entities (like hospitals) an exemption from laws prohibiting discrimination on the basis of religion does not amount to an unconstitutional “establishment” of religion by Congress when it granted that exemption since the exemption effectuates a more complete separation of church and state.

    Justice Brennan (with Justice Marshall) concurred in the judgment, noting that the limit of his concurrence was that the activities of the religious groups must be truly nonprofit activities.

    Justice Blackmun concurred in the judgment, noting “question of the constitutionality of the 702 exemption as applied to for-profit activities of religious organizations remains open.”

    Justice O’Connor concurred in the judgment, noting the tension between Establishment Clause and Free Exercise Clause standards, and ending with the text quoted by Justice Blackmun.

  • Karcher v. May, 484 U.S. 72 (December 1, 1987).

    Justice O’Connor (with the Chief Justice and Justices Brennan, Marshall, Blackmun, Stevens, and Scalia) held that, in a case involving a “moment of silence” law invalidated by a lower court on constitutional grounds, the presiding officers of the legislature, who had previously participated in their official capacities, could not file an appeal to the U. S. Supreme Court in their individual capacities after losing their offices and their successors having withdrawn their official participation in the litigation. Thus, the appeal was dismissed.

    Justice White concurred in the judgment, noting several related facts.

  • Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439 (April 19, 1988).

    Justice O’Connor (with the Chief Justice and Justices White, Stevens, and Scalia) held that a government program to build a road through, and harvest timber from, a forest area traditionally used by Indians for religious purposes did not violate the Free Exercise Clause.

    Justice Brennan (with Justices Marshall and Blackmun) dissented, noting that the majority decision holds “that a federal land-use decision that promises to destroy an entire religion does not burden the practice of that faith in a manner recognized by the Free Exercise Clause.”

  • Employment Div., Dept. of Human Resources of Ore. v. Smith, 485 U.S. 660 (April 27, 1988).

    Justice Stevens (with the Chief Justice and Justices White, O’Connor, and Scalia) held that the federal question need not (and could not) be addressed until the Oregon Supreme Court advised whether or not the sacramental use of peyote was legal or illegal conduct under the laws of the State of Oregon.

    Justice Brennan (with Justices Marshall and Blackmun) dissented, noting that the Oregon Supreme Court had specifically disavowed any intent of enforcing its criminal laws through a denial of unemployment benefits, and had decided to follow the line of cases beginning with Sherbert v. Verner, 374 U.S. 398 (June 17, 1963).

  • Bowen v. Kendrick, 487 U.S. 589 (June 29, 1988).

    Chief Justice Rehnquist (with Justices White, O’Connor, Scalia, and Kennedy) held that the Adolescent Family Life Act (AFLA or Act), Pub. L. 97-35, 95 Stat. 578, 42 U.S.C. 300z et seq. (1982 ed. and Supp. IV), did not violate the Establishment Clause on its face, and that if such violations were occurring on an “as applied” basis with respect to the approval of any particular grants, “an appropriate remedy would require the Secretary to withdraw such approval.”

    Justice O’Connor concurred, pointing out that Establishment Clause violations were certainly proven by the record, and that remedial action was certainly necessary.

    Justice Kennedy (with Justice Scalia) concurred, noting that: “The question in an as-applied challenge is not whether the entity is of a religious character, but how it spends its grant.”

    Justice Blackmun (with Justices Brennan, Marshall, and Stevens) dissented, holding that the statutory scheme itself was unconstitutional based upon the pervasive evidence of constitutionally suspect behavior.

  • Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (February 21, 1989).

    Justice Brennan (with Justices Marshall and Stevens) held that a sales tax on publications, which exempted “religious” publications from tax, was a violation of the Establishment Clause.

    Justice White concurred in the judgment on the grounds that Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221 (April 22, 1987) controlled the case herein.

    Justice Blackmun (with Justice O’Connor) concurred in the judgment with a different line of reasoning.

    Justice Scalia (with the Chief Justice and Justice Kennedy) dissented, in a vitriolic opinion, because he found “no basis in the text of the Constitution, the decisions of this Court, or the traditions of our people for disapproving this longstanding and widespread practice.”

  • Frazee v. Illinois Dep’t of Employment Security, 489 U.S. 829 (March 29, 1989).

    Justice White (with a unanimous Court) held that a man could not be denied unemployment compensation based upon his refusal to work on his Sabbath, citing to Sherbert v. Verner, 374 U.S. 398 (June 17, 1963) and its progeny; the fact that the man identified himself only as a “Christian” (as opposed to some particular sect of Christians, like the Seventh Day Adventists) was no excuse for the State to deny him his rights.

  • Hernandez v. Commissioner, 490 U.S. 680 (June 5, 1989).

    Justice Marshall (with the Chief Justice and Justices White, Blackmun, and Stevens) held that payments by practitioners of Scientology were not deductible “contributions” to the Church of Scientology under Section 170 of the Internal Revenue Code allowing “gifts” to be deducted.

    Justice O’Connor (with Justice Scalia) dissented on the grounds that this decision was inconsistent with 70 years of IRS precedents allowing “fixed deductions” for payments made to church organizations, and thus this represented a religious discrimination.

  • Allegheny County v. Greater Pittsburgh Chapter, American Civil Liberties Union, 492 U.S. 573 (July 3, 1989).

    Justice Blackmun (with, at most, Justices Brennan, Marshall, Stevens, and O’Connor, but with decreasing concurrence in various parts of the opinion) found that a crèche provided by a Roman Catholic order, and located in the most prominent and accessible part of the courthouse, with no other similar displays nearby, violated the Establishment Clause, and in non-binding portions of his opinion, held that the Chanukah menorah located next to a Christmas tree display in an outdoor area did not violate the Establishment Clause.

    Justice O’Connor (and in Part II only, with Justices Brennan and Stevens) concurred in part, and concurred with the judgment, taking issue with Justice Kennedy’s proposal to abandon the so-called “endorsement test” as unworkable.

    Justice Brennan (with Justices Marshall and Stevens) concurred in part and dissented in part, finding the mixed disposition incongruous, and stating that the menorah should also have been declared to be an unconstitutional “endorsement” of religion.

    Justice Stevens (with Justices Brennan and Marshall) concurred in part and dissented in part, reviewing Establishment Clause history and also concluding that the menorah display was unconstitutional.

    Justice Kennedy (with the Chief Justice and Justices White and Scalia) concurred in the judgment in part and dissented in part, holding that even the crèche display should have been held to be proper under the Establishment Clause.

  • Jimmy Swaggart Ministries v. Board of Equalization of Cal., 493 U.S. 378 (January 17, 1990).

    Justice O’Conner (with a unanimous Court) held that a state can constitutionally impose a sales and/or use tax on the sales and our use of religious materials.

  • Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (April 17, 1990).

    ***** LANDMARK CASE *****

    Justice Scalia (with the Chief Justice and Justices White, Stevens, and Kennedy) distinguished other cases involving denial of unemployment insurance benefits (i.e., Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136 (February 25, 1987), etc.) on the grounds that in none of those prior cases was the religious conduct leading to the dismissal of the employees properly declared to be “illegal” under state law; held that the Free Exercise clause did not create any exception to any generally applicable criminal laws, so long as those laws were not targeted at the religious conduct in question; distinguished other cases involving the “Free Exercise” clause as also implicating other clear constitutional rights; more or less specifically limited the holding in Sherbert v. Verner, 374 U.S. 398 (June 17, 1963) to the unemployment compensation field, or at least to those fields where the governmental actor conducts an individualized review of the person’s circumstances before granting or denying a benefit; and refused to impose a “compelling government interest” standard for the review of any statute challenged outside of the very limited Sherbert criteria.

    Justice O’Connor (in the first two parts with Justices Brennan, Marshall, and Blackmun) concurred in the judgment (for herself only), and took issue with the rule announced by the majority opinion, to the effect that “if prohibiting the exercise of religion . . . is . . . merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.” She then went on (for herself) and reached the same result through an analysis of the existing “Free Exercise” case law.

    Justice Blackmun (with Justices Brennan and Marshall) dissented, objecting to the alteration of the rule from “a consistent and exacting standard to test the constitutionality of a state statute that burdens the free exercise of religion. Such a statute may stand only if the law in general, and the State’s refusal to allow a religious exemption in particular, are justified by a compelling interest that cannot be served by less restrictive means.”

  • Davis v. United States, 495 U.S. 472 (May 21, 1990).

    Justice O’Conner (with a unanimous Court) held that funds sent to the children of a taxpayer at the direction of a church to enable said children to complete their required missionary work were not deductible as contributions “to the church,” nor were they deductible as “unreimbursed expenses” made in connection with charitable volunteer services as the parents were not themselves the volunteers.

  • Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U.S. 226 (June 4, 1990).

    Justice O’Connor (with the Chief Justice and Justices White, Blackmun, and except as to Part III, Kennedy and Scalia) upheld the constitutionality and application of the “Equal Access Act” (98 Stat. 1302, 20 U.S.C. 4071-4074) as applied to secondary schools receiving federal aid, which act required said schools to permit religious clubs under certain conditions specified by the Act.

    Justice Kennedy (with Justice Scalia) concurred in part and concurred in the judgment, joining in the part of the opinion which construed the provisions of the Equal Access Act, but writing separately to give a different analysis of the Establishment Clause issues, and not joining in that portion of the opinion of the plurality.

    Justice Marshall (with Justice Brennan) concurred in the judgment, writing “separately to emphasize the steps Westside must take to avoid appearing to endorse the Christian club’s goals.”

    Justice Stevens dissented, offering a different statutory construction which did not require that the Establishment Clause issue be reached.

  • Lee v. Weisman, 505 U.S. 577 (June 24, 1992).

    Justice Kennedy (with Justices Blackmun, Stevens, O’Connor, and Souter) found a policy allowing for middle and high school principles to invite clergy to give invocations and benedictions at graduation ceremonies to be an unconstitutional “establishment” of religion, as the state official directed the religious performance, distinguishing Marsh v. Chambers, 463 U.S. 783 (July 5, 1983) on the grounds of compelled attendance and age of participants.

    Justice Blackmun (with Justices Stevens and O’Connor) concurred, with a lengthy review of Establishment Clause jurisprudence.

    Justice Souter (with Justices Stevens and O’Connor) concurred, also with a lengthy review, pointed at the dissenters, and arguing that it was never contemplated by any of the founders that the state would be able to foist some approved view of religion off on members of the general public at the expense of the taxpayers.

    Justice Scalia (with the Chief Justice and Justices White and Thomas) dissented, stating (among many other things) that “Today’s opinion shows more forcefully than volumes of argumentation why our Nation’s protection, that fortress which is our Constitution, cannot possibly rest upon the changeable philosophical predilections of the Justices of this Court, but must have deep foundations in the historic practices of our people.” He then went on to rant about how, prior to today’s decision, nondenominational prayers (i.e., those making no reference to sectarian dogmas) at school graduations and other similar ceremonies had been part of the life of America, while only the sectarian sort of religious utterance was to be enjoined when uttered by a state actor, and that it is wrong to change a centuries old practice followed by our founding fathers. It is interesting, however, that he did use the word “aberration” to refer to Holy Trinity Church v. United States, 143 U.S. 457, 12 S. Ct. 511 (February 29, 1892), a case most loved by the Radical Religious Right for its outspoken advocacy of Christianity.

  • Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 385 (June 7, 1993).

    Justice White (with the Chief Justice and Justices Blackmun, Stevens, O’Connor, and Souter) found that a school’s rule excluding all religious groups from use of the school facilities was unconstitutional because it was not “viewpoint neutral” (i.e., non-religious groups could use the facilities for the same overall purposes, or perhaps for the exact same presentation if they wished).

    Justice Kennedy concurred in part and concurred in the judgment.

    Justice Scalia (with Justice Thomas) concurred in the judgment, desiring to overrule Lemon v. Kurtzman, 403 U. S. 602 (June 28, 1971), and also noting a hostility towards religion in Establishment Clause jurisprudence.

  • Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (June 11, 1993).

    Justice Kennedy (with Justice Stevens, and with respect to various other parts of the opinion, either the Chief Justice and/or Justices White, Thomas, and/or Souter) held that laws criminalizing the ritual killings of animals, specifically targeted at the Santeria religion, and enacted not long after a Santeria church acquired property in the city, were clearly unconstitutional.

    Justice Scalia (with Chief Justice Rehnquist) concurred in part and concurred in the judgment, noting that the focus should be strictly upon the effects of the laws rather than on the motives of the lawmakers.

    Justice Souter concurred in part and concurred in the judgment, taking issue with Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (April 17, 1990) to the extent that it had formed any part of the legal basis of this decision.

    Justice Blackmun (with Justice O’Connor) concurred in the judgment, but cited his dissent in Smith, supra, for the proposition that the “compelling interest” test is proper when any law is found to burden the free exercise of religion.

  • Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (June 18, 1993).

    Chief Justice Rehnquist (with Justices White, Scalia, Kennedy, and Thomas) held that a deaf student, who was entitled under a neutral general welfare law to a sign language interpreter, could not be denied that benefit merely because he chose to attend a Roman Catholic school. The aid was to the student, not the school or the religion, and the translator was merely a conduit, not a source of teaching.

    Justice Blackmun (with Justice Souter and with Justices Stevens and O’Connor as to Part I) dissented, noting that the Court should not reach the merits of the First Amendment claim in the first place, and that even if it did, placing a public employee in a sectarian school for the purpose of (among other things) conveying a specifically religious message must be seen as an Establishment Clause violation.

    Justice O’Connor (with Justice Stevens) dissented by joining the first part of Justice Blackmun’s dissent, to the effect that the Court should not reach the constitutional issue.

  • Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687 (June 27, 1994).

    Justice Souter (with Justices Blackmun, Stevens, Ginsburg, and mostly O’Connor) held that the New York law establishing a school district located solely within the boundaries of a community of Satmar Jews was an unconstitutional establishment of religion.

    Justice Blackmun concurred, and stood up for the continued viability of Lemon v. Kurtzman, 403 U. S. 602 (June 28, 1971).

    Justice Stevens (with Justices Blackmun and Ginsburg) concurred, noting the consequences of allowing a religious community to totally control everything learned by its children.

    Justice O’Connor concurred in part, and concurred in the judgment, noting that the government had accommodated the Satmars in various ways, and further accommodation was by no means foreclosed, so long as a constitutional approach is followed.

    Justice Kennedy concurred in the judgment, noting his feelings that accommodations can be made for religious groups, but it appeared to him that drawing political boundaries on the basis of religion must necessarily be unconstitutional.

    Justice Scalia (with the Chief Justice and Justice Thomas) dissented, rather scathingly noting that the creation of a school district for a small plot of land was by no means unique in New York law, and that the community had already used its rights under the neutral and secular laws of New York to create its own civil government (a “village”).

  • Capitol Sq. Review Bd. v. Pinette, 515 U.S. 753 (June 29, 1995).

    Justice Scalia (with the Chief Justice and Justices Kennedy and Thomas, and mostly with Justices O’Connor, Souter, and Breyer) held that “a private, unattended display of a religious symbol in a public forum” does not violate the Establishment Clause and must be permitted by the standards of “viewpoint neutrality” applicable to public forums. The split between the plurality and the majority (and the dissent, for that matter) occurred over this observation: these Justices advocate a standard which “exiles private religious speech to a realm of less-protected expression heretofore inhabited only by sexually explicit displays and commercial speech.”

    Justice Thomas concurred, noting that the Ku Klux Klan had appropriated a religious symbol for political purposes, and thus the purpose of the speech may well not have been religious in the first instance.

    Justice O’Connor (with Justices Souter and Breyer) concurred with the judgment, citing the need to perform an “endorsement test” but, ultimately finding that, under the circumstances of this case, there could not be any endorsement perceived by a reasonable, informed observer.

    Justice Souter (with Justices O’Connor and Breyer) concurred with the judgment, noting the ability of the government to exercise “content neutral” controls over its property, and also objecting to the exclusion of the “endorsement test” from the plurality opinion, ultimately noting that the government had the option to exercise its “most narrowly drawn” alternative to ensure no “endorsement” was perceived by exercising its “time, place, and manner” controls.

    Justice Stevens dissented on the grounds that there should be “a strong presumption against the installation of unattended religious symbols on public property.”

    Justice Ginsburg dissented on the grounds of perceived endorsement by the state, and expressed uncertainty that even a substantial disclaimer would have sufficed.

  • Rosenberger v. University of Virginia, 515 U.S. 819, 115 S. Ct. 2510 (June 29, 1995).

    Justice Kennedy (with the Chief Justice and Justices O’Connor, Scalia and Thomas) held that a university may not engage in viewpoint discrimination against specifically religious organizations within its overall program to subsidize and allow various privileges to certain student organizations allowed by “the program the University created to support extracurricular student activities on its campus.” This is, in essence, a “limited public forum” case.

    Justices O’Connor and Thomas concurred in brief separate opinions.

    Justice Souter (with Justices Stevens, Ginsburg, and Breyer) dissented, largely on the grounds that the “Student Activity Fee” was clearly a “tax” and the use of “tax” money to finance the delivery of a religious message was as repugnant to the Establishment Clause as was the proposed appropriation by the State of Virginia which generated Madison’s Memorial and Remonstrance. (see Everson v. Board of Education, 330 U.S. 1 at 63 (Feb. 10, 1947).) Of course, this does not in any way address whether or not discrimination on the basis of religion is illegal under existing statutory law, also made applicable to the states by the 14th Amendment.

  • Agostini v. Felton, 521 U. S. 203 (June 23, 1997).

    ***** LANDMARK CASE *****

    Justice O’Connor (with the Chief Justice and Justices Scalia, Kennedy, and Thomas) overruled Aguilar v. Felton, 473 U.S. 402 (July 1, 1985), and to a less than total extent, its companion case of School Dist. of Grand Rapids v. Ball, 473 U.S. 373 (July 1, 1985); and also modified the test of Lemon v. Kurtzman, 403 U. S. 602 (June 28, 1971) at least with respect to how it is applied to cases involving government aid to schools. The new test eliminates the “excessive entanglements” prong of Lemon, supra, at least for this type of case, holding that the school board’s “system for monitoring the religious content of publicly funded Title I classes in the religious schools” would now pass constitutional muster, and therefore the public employees could provide Title I services on the grounds of church schools under those conditions.

    Justice Souter (with Justices Stevens, Ginsburg, and partly Breyer) dissented, largely on the grounds that the program as envisioned by the majority constitutes a subsidy to religion.

    Justice Ginsburg (with Justices Stevens, Souter, and Breyer) dissented, objecting to the novel procedural steps used to bring this case back up for reconsideration more than a decade after the original decision had been rendered.

  • City of Boerne v. Flores, 521 U. S. 507 (June 25, 1997).

    Justice Kennedy (with the Chief Justice and Justices Thomas, Stevens, Ginsburg and partly Justice Scalia) held that a church could not use the Religious Freedom Restoration Act of 1993 to avoid compliance with local zoning requirements because that act had been unconstitutionally enacted by Congress. The 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 Stevens concurred, noting that: “Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment.”

    Justice Scalia (with Justice Stevens) concurred in part, and took issue with Justice O’Conner’s dissent.

    Justice O’Connor (mostly with Justice Breyer) dissented, arguing that Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (April 17, 1990) had been wrongly decided and thus the wrong measure of the power of Congress was used herein.

    Justices Souter and Breyer each filed brief dissents.

  • Board of Regents of the University of Wisconsin System v. Southworth, _ U.S. _ (March 22, 2000).

    Justice Kennedy (with the Chief Justice and Justices O’Connor, Scalia, Thomas, and Ginsburg) held that forced exactions of Student Activity Fees (an issue left open by its decision in Rosenberger v. University of Virginia, 515 U.S. 819, 115 S. Ct. 2510 (June 29, 1995), supra) were constitutional, so long as the University of Wisconsin complied with the requirements set forth in Rosenberger, supra, that the activities funded must be “viewpoint neutral,” meaning that the university cannot refuse to fund groups which are religious and/or political in nature, along with other stated requirements, including eliminating the referendum provisions.

    Justice Souter (with Justices Stevens and Breyer) concurred in the judgment, taking issue with the majority opinion to the extent which it imposed “a cast-iron viewpoint neutrality requirement,” preferring to analyze the case by asking whether or not the complaining students had a cognizable interest mandating an exemption from the viewpoint neutral scheme managed by the university. Under that analysis, the student’s claims were found to be insufficient or too attenuated by the specifics of this case, and thus the judgment reached by the majority was warranted on these narrower grounds.

  • Santa Fe Independent School Dist. v. Doe, _ U.S. _ (June 19, 2000).

    Justice Stevens (for the majority) found that the use of government-owned resources to convey a religious message by a person elected by a majority of the students at a school-sponsored event was a violation of the Establishment Clause.

    Chief Justice Rehnquist (with Justices Scalia and Thomas) dissented because the school district changed its policy after the litigation commenced and the majority invalidated a policy that had never been put into practice, and positing that a situation similar to a graduation might have created a result which would have been constitutional (“If the State had chosen its graduation day speakers according to wholly secular criteria, and if one of those speakers (not a state actor) had individually chosen to deliver a religious message, it would be harder to attribute an endorsement of religion to the State”).

  • Mitchell v. Helms, _ U.S. _ (June 28, 2000).

    Justice Thomas (with The Chief Justice, and Justices Scalia and Kennedy) held that “Chapter 2” general aid to schools (involving the “lending” of educational materials and equipment to both public and private schools) did not violate the Establishment Clause because “it neither results in religious indoctrination by the government nor defines its recipients by reference to religion.”

    Justice O’Connor (with Justice Breyer) concurred in the judgment for this case, but took exception to the “rule of unprecedented breadth for the evaluation of Establishment Clause challenges to government school-aid programs” announced in this decision, claiming that “the plurality’s treatment of neutrality comes close to assigning that factor singular importance” and “the plurality’s approval of actual diversion of government aid to religious indoctrination is in tension with our precedents.”

    Justice Souter (with Justices Stevens and Ginsburg) dissented on the issue of divertability, particularly in light of the instances of actual diversion disclosed in the record of this case.

  • Good News Club v. Milford Central School, No. 99-2036 (By July, 2001).

    The issue in this pending case is whether or not a school which has established a “limited public forum,” and which allows groups like the Boy Scouts to use that forum, but which prohibits uses for “religious services,” must allow a group which uses a “religious services”-type approach to teaching morality to kids to make use of that “limited public forum.” The circuits are split, as the Eighth Circuit allowed a virtually identical club while the Second Circuit (in this case) prohibited it. The outcome here, however, would seem to be foreordained by the decisions in Rosenberger v. University of Virginia, 515 U.S. 819, 115 S. Ct. 2510 (June 29, 1995) and Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 385 (June 7, 1993) with the sole deciding question being whether or not the school’s policy is a permissible form of “content discrimination, which may be permissible if it preserves the purposes of that limited forum.” (Rosenberger, supra.) So, as competing authority, that would seem to be what would happen under Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U.S. 226 (June 4, 1990) and/or Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (January 13, 1988). However, in both of those cases, the schools provided public employees to monitor and control the student groups, and in those cases, the “speech” was deemed to be that of the school, which could then decide what it wished to “say” or “not say.” So, again, it appears that Lamb’s Chapel and Rosenberger are more on point, as in all three cases, “religious speech” was being discriminated against. Nonetheless, the majority opinion from the Second District Court of Appeals reads like they considered all of the proper points and decided the case correctly, so maybe it will be possible to keep these jerks out of elementary schools after all.

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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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