The Constitutional Principle: Separation of Church and State
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Secular Humanism in U. S. Supreme Court Cases

The word "religion" is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted. The precise point of the inquiry is, what is the religious freedom which has been guaranteed? Reynolds V. United States, 98 U.S. 145 (1879)

"[T]he term 'religion' has reference to one's views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will." Davis v. Beason, 133 U.S. 333, 342 (1890)

Research and editing by Jim Allison.


The following United States Supreme Court cases have been selected for any/all references to secular humanism, a cite of Torcaso v Watkins, a religion of Humanism, etc. Notice that:

In reading court opinions, one has to understand that only the actual ruling, i.e., the holding, of the court has meaning as law and is legally binding. The content of footnotes, dicta, reasoning, or rationale is not the actual decision or "holding" of the court. Although such commentary in the footnotes, dicta, reasoning, or rationale can be informative, interesting, and even provide persuasion for future arguments, it isn't law; it isn't the finding of the court-- it isn't binding on anything.

People can say the court said this, or the court said that, but the only thing that the court said that matters is the actual holding or ruling of that case.


FindLaw: Torcaso v. Watkins, 367 U.S. 488 (1961)

http://laws.findlaw.com/us/367/488.html

Appellant was appointed by the Governor of Maryland to the office of Notary Public; but he was denied a commission because he would not declare his belief in God, as required by the Maryland Constitution. Claiming that this requirement violated his rights under the First and Fourteenth Amendments, he sued in a state court to compel issuance of his commission; but relief was denied. The State Court of Appeals affirmed, holding that the state constitutional provision is self-executing without need for implementing legislation and requires declaration of a belief in God as a qualification for office.

Held: This Maryland test for public office cannot be enforced against appellant, because it unconstitutionally invades his freedom of belief and religion guaranteed by the First Amendment and protected by the Fourteenth Amendment from infringement by the States. pp. 489-496.

223 Md. 49, 162 A. 2d 438, reversed.

. . . 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, (10) and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.(11)

Footnotes:

(10) In discussing Article VI in the debate of the North Carolina Convention on the adoption of the Federal Constitution, James Iredell, later a Justice of this Court, said:

". . . [I]t is objected that the people of America may, perhaps, choose representatives who have no religion at all, and that pagans and Mahometans may be admitted into offices. But how is it possible to exclude any set of men, without taking away that principle of religious freedom which we ourselves so warmly contend for?"

And another delegate pointed out that Article VI "leaves religion on the solid foundation of its own inherent validity, without any connection with temporal authority; and no kind of oppression can take place." 4 Elliot, op. cit., supra, at 194, 200.

(11) Among religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and others. See Washington Ethical Society v. District of Columbia, 101 U.S. App. D.C. 371, 249 F.2d 127; Fellowship of Humanity v. County of Alameda, 153 Cal. App. 2d 673, 315 P.2d 394; II Encyclopaedia of the Social Sciences 293; 4 Encyclopaedia Britannica (1957 ed.) 325-327; 21 id., at 797; Archer, Faiths Men Live By (2d ed. revised by Purinton), 120-138, 254-313; 1961 World Almanac 695, 712; Year Book of American Churches for 1961, at 29, 47.


FindLaw: Cramp v. Bd. Of Public Instruction, 368 U.S. 278 (1961)

http://laws.findlaw.com/us/368/278.html

As in Wieman v. Updegraff, we are not concerned here with the question "whether an abstract right to public employment exists." 344 U.S. 183 , at 192. Nor do we question the power of a State to safeguard the public service from disloyalty. Cf. Slochower v. Board of Education, 350 U.S. 551 ; Adler v. Board of Education, 342 U.S. 485 . It is enough for the present case to reaffirm "that constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory." Wieman v. Updegraff, supra, at 192. "The fact . . . that a person is not compelled to hold public office cannot possibly be an excuse for barring him from office by state-imposed criteria forbidden by the Constitution." Torcaso v. Watkins, 367 U.S. 488 , at 495-496.


FindLaw: Sherbert v. Verner, 374 U.S. 398 (1963)

http://laws.findlaw.com/us/374/398.html

The door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs as such, Cantwell v. Connecticut, 310 U.S. 296, 303 . Government may neither compel affirmation of a repugnant belief, Torcaso v. Watkins, 367 U.S. 488 ; nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities, Fowler v. Rhode Island, 345 U.S. 67 ; nor employ the taxing power to inhibit the dissemination of particular religious views, Murdock v. Pennsylvania, 319 U.S. 105 ; Follett v. McCormick, 321 U.S. 573 ; cf. Grosjean v. American Press Co., 297 U.S. 233 . On the other hand, [374 U.S. 398, 403] the Court has rejected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs or principles, for "even when the action is in accord with one's religious convictions, [it] is not totally free from legislative restrictions." Braunfeld v. Brown, 366 U.S. 599, 603 . The conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order. See, e. g., Reynolds v. United States, 98 U.S. 145 ; Jacobson v. Massachusetts, 197 U.S. 11 ; Prince v. Massachusetts, 321 U.S. 158 ; Cleveland v. United States, 329 U.S. 14 .

[Footnote 9] . . . compare Torcaso v. Watkins, supra, in which an undoubted state interest in ensuring the veracity and trustworthiness of Notaries Public was held insufficient to justify the substantial infringement upon the religious freedom of applicants for that position which resulted from a required oath of belief in God. See 74 Harv. L. Rev. 611, 612-613 (1961); 109 U. of Pa. L. Rev. 611, 614-616 (1961).

Mr. Justice Stewart, concurring in the result.

Twenty-three years ago in Cantwell v. Connecticut, 310 U.S. 296, 303 , the Court said that both the Establishment Clause and the Free Exercise Clause of the First Amendment were made wholly applicable to the States by the Fourteenth Amendment. In the intervening years several cases involving claims of state abridgment of individual religious freedom have been decided here - most recently Braunfeld v. Brown, 366 U.S. 599 , and Torcaso v. Watkins, 367 U.S. 488 . During the same period, cases dealing with the specific problems arising under the `Establishment' Clause which have reached this Court are few in number." 1

Mr. Justice Harlan, whom Mr. Justice White joins, dissenting.

It has been suggested that such singling out of religious conduct for special treatment may violate the constitutional limitations on state action. See Kurland, Of Church and State and The Supreme Court, 29 U. of Chi. L. Rev. 1; cf. Cammarano v. United States, 358 U.S. 498, 515 (concurring opinion). My own view, however, is that at least under the circumstances of this case it would be a permissible accommodation of religion for the State, if it chose to do so, to create an exception to its eligibility requirements for persons like the appellant. The constitutional obligation of "neutrality," see School District of Abington Township v. Schempp, ante, p. 222, is not so narrow a channel that the slightest deviation from an absolutely straight course leads to condemnation. There are too many instances in which no such course can be charted, too many areas in which the pervasive activities of the State justify some special provision for religion to prevent it from being submerged by an all-embracing secularism. The State violates its obligation of neutrality [374 U.S. 398, 423] when, for example, it mandates a daily religious exercise in its public schools, with all the attendant pressures on the school children that such an exercise entails. See Engel v. Vitale, 370 U.S. 421 ; School District of Abington Township v. Schempp, supra. But there is, I believe, enough flexibility in the Constitution to permit a legislative judgment accommodating an unemployment compensation law to the exercise of religious beliefs such as appellant's.


FindLaw: Abington School Dist. v. Schempp, 374 U.S. 203 (1963)

http://laws.findlaw.com/us/374/203.html

Held:

Because of the prohibition of the First Amendment against the enactment by Congress of any law "respecting an establishment of religion," which is made applicable to the States by the Fourteenth Amendment, no state law or school board may require that passages from the Bible be read or that the Lord's Prayer be recited in the public schools of a State at the beginning of each school day - even if individual students may be excused from attending or participating in such exercises upon written request of their parents. pp. 205-227.

201 F. Supp. 815, affirmed.

228 Md. 239, 179 A. 2d 698, reversed.


The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality. Though the application of that rule requires interpretation of a delicate sort, the rule itself is clearly and concisely stated in the words of the First Amendment. Applying that rule to the facts of these cases, we affirm the judgment in No. 142. [374 U.S. 203, 227] In No. 119, the judgment is reversed and the cause remanded to the Maryland Court of Appeals for further proceedings consistent with this opinion.

It is so ordered.


It is insisted that unless these religious exercises are permitted, a "religion of secularism" is established in the schools. We agree of course that the State may not establish a "religion of secularism" in the sense of affirmatively opposing or showing hostility to religion, thus "preferring those who believe in no religion over those who do believe." Zorach v. Clauson, supra, at 314. We do not agree, however, that this decision in any sense has that effect. In addition, it might well be said that one's education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment. But the exercises here do not fall into those categories. They are religious exercises, required by the States in violation of the command of the First Amendment that the Government maintain strict neutrality, neither aiding nor opposing religion.


[references to "religion of secularism" in the dissent]

From: Mr. Justice Stewart, dissenting.

It might also be argued that parents who want their children exposed to religious influences can adequately fulfill that wish off school property and outside school time. With all its surface persuasiveness, however, this argument seriously misconceives the basic constitutional justification for permitting the exercises at issue in these cases. For a compulsory state educational system so structures a child's life that if religious exercises are held to be an impermissible activity in schools, religion is placed at an artificial and state-created disadvantage. Viewed in this light, permission of such exercises for those who want them is necessary if the schools are truly to be neutral in the matter of religion. And a refusal to permit religious exercises thus is seen, not as the realization of state neutrality, but rather as the establishment of a religion of secularism, or at the least, as government support of the beliefs of those who think that religious exercises should be conducted only in private.

[Editor's Note: The Court firmly rejected the "establishment of a religion of secularism" argument.]


FindLaw: Chamberlin v. Public Instruction Bd., 377 U.S. 402 (1964)

http://laws.findlaw.com/us/377/402.html

I think, however, that two of those "other questions" - the baccalaureate services and the religious census - do not present substantial federal questions, and so I concur in the dismissal of the appeal as to them. As to the religious test for teachers, [*] I think a substantial question is presented. Cf. Torcaso v. Watkins, 367 U.S. 488 . I would therefore put that question down for argument, postponing the question of jurisdiction to the merits.

[Footnote *] Applicants for teaching positions are required to answer the question, "Do you believe in God?" Religious attitudes are also considered in making promotions. [377 U.S. 402, 404]


FindLaw: Baggett v. Bullitt, 377 U.S. 360 (1964)

http://laws.findlaw.com/us/377/360.html

As in Cramp v. Board of Public Instruction, supra, we do not question the power of a State to take proper measures safeguarding the public service from disloyal conduct. [377 U.S. 360, 380] But measures which purport to define disloyalty must allow public servants to know what is and is not disloyal. "The fact . . . that a person is not compelled to hold public office cannot possibly be an excuse for barring him from office by state-imposed criteria forbidden by the Constitution." Torcaso v. Watkins, 367 U.S. 488, 495 -496.


FindLaw: United States v. Seeger, 380 U.S. 163 (1965)

http://laws.findlaw.com/us/380/163.html

These three cases involve the exemption claims under 6 (j) of the Universal Military Training and Service Act of conscientious objectors who did not belong to an orthodox religious sect. Section 6 (j) excepts from combatant service in the armed forces those who are conscientiously opposed to participation in war by reason of their "religious training and belief," i. e., belief in an individual's relation to a Supreme Being involving duties beyond a human relationship but not essentially political, sociological, or philosophical views or a merely personal moral code. In all the cases convictions were obtained in the District Courts for refusal to submit to induction in the armed forces; in Nos. 50 and 51 the Court of Appeals reversed and in No. 29 the conviction was affirmed.

Held:

1. The test of religious belief within the meaning of the exemption in 6 (j) is whether it is a sincere and meaningful belief occupying in the life of its possessor a place parallel to that filled by the God of those admittedly qualified for the exemption. pp. 173-180.

(a) The exemption does not cover those who oppose war from a merely personal moral code nor those who decide that war is wrong on the basis of essentially political, sociological or economic considerations rather than religious belief. P. 173.

(b) There is no issue here of atheistic beliefs and accordingly the decision does not deal with that question. pp. 173-174.

(c) This test accords with long-established legislative policy of equal treatment for those whose objection to military service is based on religious beliefs. pp. 177-180.

2. Local boards and courts are to decide whether the objector's beliefs are sincerely held and whether they are, in his own scheme of things, religious: they are not to require proof of the religious [380 U.S. 163, 164] doctrines nor are they to reject beliefs because they are not comprehensible. pp. 184-185.

3. Under the broad construction applicable to 6 (j) the applications involved in these cases, none of which was based on merely personal moral codes, qualified for exemption. pp. 185-188.

326 F.2d 846 and 325 F.2d 409, affirmed; 324 F.2d 173, reversed.


FindLaw: Keyishian v. Board of Regents, 385 U.S. 589 (1967)

http://laws.findlaw.com/us/385/589.html

However, the Court of Appeals for the Second Circuit correctly said in an earlier stage of this case, ". . . the theory that public employment which may be denied altogether may be subjected to any conditions, regardless [385 U.S. 589, 606] of how unreasonable, has been uniformly rejected." Keyishian v. Board of Regents, 345 F.2d 236, 239. Indeed, that theory was expressly rejected in a series of decisions following Adler. See Wieman v. Updegraff, 344 U.S. 183 ; Slochower v. Board of Education, 350 U.S. 551 ; Cramp v. Board of Public Instruction, supra; Baggett v. Bullitt, supra; Shelton v. Tucker, supra; Speiser v. Randall, supra; see also Schware v. Board of Bar Examiners, 353 U.S. 232; Torcaso v. Watkins, 367 U.S. 488 .


FindLaw: Epperson v. Arkansas, 393 U.S. 97 (1968)

http://laws.findlaw.com/us/393/97.html

Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, [393 U.S. 97, 104] and practice. It may not be hostile to any religion or to the advocacy of no-religion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion. [12]

As early as 1872, this Court said: "The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect." Watson v. Jones, 13 Wall. 679, 728. This has been the interpretation of the great First Amendment which this Court has applied in the many and subtle problems which the ferment of our national life has presented for decision within the Amendment's broad command.

[Footnote 12] Everson v. Board of Education, 330 U.S. 1, 18 (1947); McCollum v. Board of Education, 333 U.S. 203 (1948); Zorach v. Clauson, 343 U.S. 306, 313 -314 (1952); Fowler v. Rhode Island, 345 U.S. 67 (1953); Torcaso v.Watkins, 367 U.S. 488, 495 (1961).


FindLaw: Walz v. Tax Commission of City of New York, 397 U.S. 664 (1970)

http://laws.findlaw.com/us/397/664.html

Government must neither legislate to accord benefits that favor religion over nonreligion, nor sponsor a particular sect, nor try to encourage participation in or abnegation of religion. Mr. Justice Goldberg'sconcurring opinion in [397 U.S. 664 , 695] Abington which I joined set forth these principles: '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.' 374 U.S., at 305 . The Court's holding in Torcaso v. Watkins, 367 U.S. 488, 495 , 1683-1684 (1961), is to the same effect: the State cannot 'constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can (it) aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.' In the vast majority of cases the inquiry, albeit an elusive one, can end at this point. Neutrality and voluntarism stand as barriers against the most egregious and hence divisive kinds of state involvement in religious matters.

In Torcaso v. Watkins, 367 U.S. 488 , we held that [397 U.S. 664 , 701] a State could not bar an atheist from public office in light of the freedom of belief and religion guaranteed by the First and Fourteenth Amendments. Neither the State nor the Federal Government, we said, 'can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.' Id., at 495-1684.

That principle should govern this case.

We should adhere to what we said in Torcaso v. Watkins, 367 U.S., at 495 -1684, that neither a State nor the Federal Government 'can constitutionally pass laws or impose requirements which aid all religion as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religious founded on different beliefs.' [Emphasis added.]

Unless we adhere to that principle, we do not give full support either to the Free Exercise Clause or to the Establishment Clause.


FindLaw: Welsh v. United States, 398 U.S. 333 (1970)

http://laws.findlaw.com/us/398/333.html

Petitioner was convicted of refusing to submit to induction into the Armed Forces despite his claim for conscientious objector status under 6 (j) of the Universal Military Training and Service Act. That provision exempts from military service persons who by reason of "religious training and belief" are conscientiously opposed to war in any form, that term being defined in the Act as "belief in a relation to a supreme Being involving duties superior to those arising from any human relation" but not including "essentially political, sociological, or philosophical views or a merely personal code." In his exemption application petitioner stated that he could not affirm or deny belief in a "Supreme Being" and struck the words "my religious training and" from the form. He affirmed that he held deep conscientious scruples against participating in wars where people were killed. The Court of Appeals, while noting that petitioner's "beliefs are held with the strength of more traditional religious convictions," concluded that those beliefs were not sufficiently "religious" to meet the terms of 6 (j), and affirmed the conviction. Petitioner contends that the Act violates the First Amendment prohibition of establishment of religion and that his conviction should be set aside on the basis of United States v. Seeger, 380 U.S. 163 , which held that the test of religious belief under 6 (j) is whether it is a sincere and meaningful belief occupying in the life of its possessor a place parallel to that filled by the God of those admittedly qualified for the exemption.

Held: The judgment is reversed. pp. 335-367.

404 F.2d 1078, reversed.


The "radius" of this legislation is the conscientiousness with which an individual opposes war in general, yet the statute, as I think it must be construed, excludes from its "scope" individuals motivated by teachings of nontheistic religions, [8] and individuals guided by an inner ethical voice that bespeaks secular and not "religious" reflection. It not only accords a preference to the "religious" but also disadvantages adherents of religions that do not worship a Supreme Being. The constitutional infirmity cannot be cured, moreover, even by an impermissible construction that eliminates the theistic requirement and simply draws the line between religious and nonreligious. This in my view offends the Establishment Clause and is that kind of classification [398 U.S. 333, 358] that this Court has condemned. See my separate opinion in Walz v. Tax Comm'n, supra; School District of Abington Township v. Schempp (Goldberg, J., concurring), supra; Engel v. Vitale, supra; Torcaso v. Watkins, supra.

[Footnote 8] This Court has taken notice of the fact that recognized "religions" exist that "do not teach what would generally be considered a belief in the existence of God," Torcaso v. Watkins, 367 U.S. 488, 495 n. 11, e. g., "Buddhism, Taoism, Ethical Culture, Secular Humanism and others." Ibid. See also Washington Ethical Society v. District of Columbia, 101 U.S. App. D.C. 371, 249 F.2d 127 (1957); 2 Encyclopaedia of the Social Sciences 293; J. Archer, Faiths Men Live By 120-138, 254-313 (2d ed. revised by Purinton 1958); Stokes & Pfeffer, supra, n. 3, at 560.


FindLaw: Tilton v. Richardson, 403 U.S. 672 (1971)

http://laws.findlaw.com/us/403/672.html

Mr. Justice Douglas, with whom Mr. Justice Black and Mr. Justice Marshall concur, dissenting in part.

. . . The First Amendment bars establishment of a religion. And as I noted today in Lemon and DiCenso, this bar has been consistently interpreted from Everson v. Board of Education, 330 U.S. 1, 16 , through Torcaso v. Watkins, 367 U.S. 488, 493 as meaning: "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."


FindLaw: Lemon v. Kurtzman, 403 U.S. 602 (1971)

http://laws.findlaw.com/us/403/602.html

We said in unequivocal words in Everson v. Board of Education, 330 U.S. 1, 16 , "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." We reiterated the same idea in Zorach v. Clauson, 343 U.S. 306, 314 , and in McGowan v. Maryland, 366 U.S. 420, 443 , and in Torcaso v. Watkins, 367 U.S. 488, 493 . We repeated the same idea in McCollum v. Board of Education, 333 U.S. 203, 210 , and added that a State's [403 U.S. 602, 641] tax-supported public schools could not be used "for the dissemination of religious doctrines" nor could a State provide the church "pupils for their religious classes through use of the State's compulsory public school machinery." Id., at 212.


Findlaw: Gillette v. United States, 401 U.S. 437 (1971)

http://laws.findlaw.com/us/401/437.html

An attack founded on disparate treatment of "religious" claims invokes what is perhaps the central purpose of the Establishment Clause - the purpose of ensuring governmental neutrality in matters of religion. See Epperson v. Arkansas, 393 U.S. 97, 103 -104 (1968); Everson v. Board of Education, 330 U.S. 1, 15 -16 (1947). Here [401 U.S. 437, 450] there is no claim that exempting conscientious objectors to war amounts to an overreaching of secular purposes and an undue involvement of government in affairs of religion. Cf. Walz v. Tax Commission, 397 U.S. 664, 675 (1970); id., at 695 (opinion of Harlan, J.). To the contrary, petitioners ask for greater "entanglement" by judicial expansion of the exemption to cover objectors to particular wars. Necessarily the constitutional value at issue is "neutrality." And as a general matter it is surely true that the Establishment Clause prohibits government from abandoning secular purposes in order to put an imprimatur on one religion, or on religion as such, or to favor the adherents of any sect or religious organization. See Engel v. Vitale, 370 U.S. 421, 430 -431 (1962); Torcaso v. Watkins, 367 U.S. 488, 495 (1961). The metaphor of a "wall" or impassable barrier between Church and State, taken too literally, may mislead constitutional analysis, see Walz v. Tax Commission, supra, at 668-669; Zorach v. Clauson, 343 U.S. 306, 312 -313 (1952), but the Establishment Clause stands at least for the proposition that when government activities touch on the religious sphere, they must be secular in purpose, evenhanded in operation, and neutral in primary impact. Abington School District v. Schempp, 374 U.S., at 222 ; id., at 231 (Brennan, J., concurring); id., at 305 (Goldberg, J., concurring).

Mr. Justice Douglas, dissenting in No. 85. *

Gillette's objection is to combat service in the Vietnam war, not to wars in general, and the basis of his objection is his conscience. His objection does not put him into the statutory exemption which extends to one "who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form." 1

He stated his views as follows:

"I object to any assignment in the United States Armed Forces while this unnecessary and unjust war is being waged, on the grounds of religious belief specifically `Humanism.' This essentially means respect and love for man, faith in his inherent goodness and perfectability, and confidence in his capability to improve some of the pains of the human condition."

The law as written is a species of those which show an invidious discrimination in favor of religious persons and against others with like scruples. Mr. Justice Black once said: "The First Amendment has lost much if the religious follower and the atheist [7] are no longer to be [401 U.S. 437, 469] judicially regarded as entitled to equal justice under law."

[Footnote 7] Article VI of the Constitution provides that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Torcaso v. Watkins, 367 U.S. 488 , upheld the right of a nonbeliever to hold public office.


FindLaw: Cruz v. Beto, 405 U.S. 319 (1972)

http://laws.findlaw.com/us/405/319.html

If Cruz was a Buddhist and if he was denied a reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts, then there was palpable discrimination by the State against the Buddhist religion, established 600 B. C., long before the Christian era. 2 The First Amendment, applicable to the States by reason of the Fourteenth Amendment, Torcaso v. Watkins, 367 U.S. 488, 492 -493, prohibits government from making a law "prohibiting the free exercise" of religion. If the allegations of this complaint are assumed to be true, as they must be on the motion to dismiss, Texas has violated the First and Fourteenth Amendments.


FindLaw: Perry v. Sindermann, 408 U.S. 593 (1972)

http://laws.findlaw.com/us/408/593.html

We have applied this general principle to denials of tax exemptions, Speiser v. Randall, supra, unemployment benefits, Sherbert v. Verner, 374 U.S. 398, 404 -405, and welfare payments, Shapiro v. Thompson, 394 U.S. 618, 627 n. 6; Graham v. Richardson, 403 U.S. 365, 374 . But, most often, we have applied the principle to denials of public employment. United Public Workers v. Mitchell, 330 U.S. 75, 100 ; Wieman v. Updegraff, 344 U.S. 183, 192 ; Shelton v. Tucker, 364 U.S. 479, 485 -486; Torcaso v. Watkins, 367 U.S. 488, 495 -496; Cafeteria Workers v. McElroy, 367 U.S. 886, 894 ; Cramp v. Board of Public Instruction, 368 U.S. 278, 288 ; Baggett v. Bullitt, 377 U.S. 360 ; Elfbrandt v. Russell, 384 U.S. 11, 17 ; Keyishian v. Board of Regents, 385 U.S. 589, 605 -606; Whitehill v. Elkins, 389 U.S. 54 ; United States v. Robel, 389 U.S. 258 ; Pickering v. Board of Education, 391 U.S. 563, 568 . We have applied the principle regardless of the public employee's contractual or other claim to a job. Compare Pickering v. Board of Education, supra, with Shelton v. Tucker, supra.


FindLaw: Lemon v. Kurtzman, 411 U.S. 192 (1973)

http://laws.findlaw.com/us/411/192.html

We said in unequivocal words in Everson v. Board of Education, 330 U.S. 1, 16 : "No tax in any amount, [411 U.S. 192, 210] 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." We reiterated the same idea in Zorach v. Clauson, 343 U.S. 306, 314 , in McGowan v. Maryland, 366 U.S. 420, 443 , and in Torcaso v. Watkins, 367 U.S. 488, 493 . We repeated the same idea in McCollum v. Board of Education, 333 U.S. 203, 210 , and added that a State's tax-supported public schools could not be used "for the dissemination of religious doctrines" nor could a State provide the church "pupils for their religious classes through use of the State's compulsory public school machinery." Id., at 212.


FindLaw: Elrod v. Burns, 427 U.S. 347 (1976)

http://laws.findlaw.com/us/427/347.html

In Torcaso v. Watkins, 367 U.S. 488 (1961), decided the same day as Cafeteria Workers, the Court squarely held that a citizen could not be refused a public office for failure to declare his belief in God.


34. FindLaw: Abood v. Detroit Board of Education, 431 U.S. 209 (1977)

http://laws.findlaw.com/us/431/209.html

The fact that the appellants are compelled to make, rather than prohibited from making, contributions for political purposes works no less an infringement of their constitutional rights. 31 For at the heart of the First Amendment is the [431 U.S. 209, 235] notion that an individual should be free to believe as he will, and that in a free society one's beliefs should be shaped by his mind and his conscience rather than coerced by the State. See Elrod v. Burns, supra, at 356-357; Stanley v. Georgia, 394 U.S. 557, 565 ; Cantwell v. Connecticut, 310 U.S. 296, 303 -304. And the freedom of belief is no incidental or secondary aspect of the First Amendment's protections:

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642 .

These principles prohibit a State from compelling any individual to affirm his belief in God, Torcaso v. Watkins, 367 U.S. 488 , or to associate with a political party, Elrod v. Burns, supra; see 427 U.S., at 363 -364, n. 17, as a condition of retaining public employment. They are no less applicable to the case at bar, and they thus prohibit the appellees from requiring any of the appellants to contribute to the support of an ideological cause he may oppose as a condition of holding a job as a public school teacher.


FindLaw: McDaniel v. Paty, 435 U.S. 618 (1978)

http://laws.findlaw.com/us/435/618.html

The Chief Justice, joined by Mr. Justice Powell, Mr. Justice Rehnquist, and Mr. Justice Stevens, concluded:

1. The Tennessee disqualification is directed primarily, not at religious belief, but at the status, acts, and conduct of the clergy. Therefore, the Free Exercise Clause's absolute prohibition against infringements on the "freedom to believe" is inapposite here. Torcaso v. Watkins, 367 U.S. 488 (which invalidated a state requirement that an appointee to public office declare his belief in the existence of God), distinguished. pp. 626-627.

Mr. Justice Brennan, joined by Mr. Justice Marshall, concluded:

(a) Freedom of belief protected by that Clause embraces freedom to profess or practice that belief, even including doing so for a livelihood. The Tennessee disqualification establishes as a condition of office the willingness to eschew certain protected religious practices. The provision therefore establishes a religious classification governing eligibility for office that is absolutely prohibited. Torcaso v. Watkins, supra. pp. 631-633.

Mr. Justice Stewart concluded that Torcaso v. Watkins, supra, controls this case. Except for the fact that Tennessee bases its disqualification, not on a person's statement of belief, but on his decision to pursue a religious vocation as directed by his belief, the situation in Torcaso is indistinguishable from the one here. pp. 642-643.

Mr. Chief Justice Burger announced the judgment of the Court and delivered an opinion in which Mr. Justice Powell, Mr. Justice Rehnquist, and Mr. Justice Stevens joined.

Moreover, "[t]he fact . . . that a person is not compelled to hold public office cannot possibly be an excuse for barring him from office by state-imposed criteria forbidden by the Constitution." Sherbert v. Verner [1] , supra, at 495-496. pp. 633-634.

[Footnote 1] Errata: "Sherbert v. Verner" should be "In Torcaso v. Watkins, 367 U.S. 488 (1961), the Court reviewed the Maryland constitutional requirement that all holders of "any office of profit or trust in this State" declare their belief in the existence of God. In striking down the Maryland requirement, the Court did not evaluate the interests assertedly justifying it but rather held that it violated freedom of religious belief.

In our view, however, Torcaso does not govern. By its [435 U.S. 618, 627] terms, the Tennessee disqualification operates against McDaniel because of his status as a "minister" or "priest." The meaning of those words is, of course, a question of state law.

Because the Tennessee disqualification is directed primarily at status, acts, and conduct it is unlike the requirement in Torcaso, which focused on belief.

Because the challenged provision establishes as a condition of office the willingness to eschew certain protected religious practices, Torcaso v. Watkins, 367 U.S. 488 (1961), compels the conclusion that it violates the Free Exercise Clause. Torcaso struck down Maryland's requirement that an appointee to the office of notary public declare his belief in the existence of God, expressly disavowing "the historically and constitutionally discredited policy of probing religious beliefs by test oaths or limiting public offices to persons who have, or perhaps more properly profess to have, a belief in some particular kind [435 U.S. 618, 633] of religious concept." Id., at 494 (footnote omitted). That principle equally condemns the religious qualification for elective office imposed by Tennessee.

Nor can Tennessee's political exclusion be distinguished from Sherbert's welfare disqualification as the Tennessee court thought, by suggesting that the unemployment compensation involved in Sherbert was necessary to sustain life while participation in the constitutional convention is a voluntary activity not itself compelled by religious belief. Torcaso answers that contention. There we held that "[t]he fact . . . that a person is not compelled to hold public office cannot possibly be an excuse for barring him from office by state-imposed criteria forbidden by the Constitution." 367 U.S., at 495 -496.

The opinion of the Tennessee Supreme Court makes clear that the statute requires appellant's disqualification solely because he is a minister of a religious faith. If appellant were to renounce his ministry, presumably he could regain eligibility for elective office, but if he does not, he must forgo an opportunity for political participation he otherwise would enjoy. Sherbert and Torcaso compel the conclusion that because the challenged provision requires appellant to purchase his right to engage in the ministry by sacrificing his candidacy it impairs the free exercise of his religion.

The plurality recognizes that Torcaso held "categorically prohibit[ed]," a provision disqualifying from political office on the basis of religious belief, but draws what I respectfully suggest is a sophistic distinction between that holding and Tennessee's disqualification provision.

The State Supreme Court's justification of the prohibition, echoed here by the State, as intended to prevent those most intensely involved in religion from injecting sectarian goals and policies into the lawmaking process, and thus to avoid fomenting religious strife or the fusing of church with state affairs, itself raises the question whether the exclusion violates the Establishment Clause. 9 As construed, the exclusion manifests patent hostility toward, not neutrality respecting, religion; forces or influences a minister or priest to abandon his ministry as the price of public office; and, in sum, has a primary effect which inhibits religion. See Everson v. Board of Education, 330 U.S. 1, 15 -16 (1947); Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 210 (1948);

Torcaso v. Watkins, 367 U.S., at 492 -494; Lemon v. Kurtzman, 403 U.S. 602 (1971); Meek v. Pittenger, 421 U.S. 349, 358 (1975). [435 U.S. 618, 637]

Mr. Justice Stewart, concurring in the judgment.

Like Mr. Justice Brennan, I believe that Torcaso v. Watkins, 367 U.S. 488 , controls this case. There, the Court held that Maryland's refusal to commission Torcaso as a notary public because he would not declare his belief in God violated the First Amendment, as incorporated by the Fourteenth. The offense against the First and Fourteenth Amendments lay not simply in requiring an oath, but in "limiting public offices to persons who have, or perhaps more properly profess to have, a belief in some particular kind of religious concept." Id., at 494. As the Court noted: "The fact . . . that a person is not compelled to hold public office cannot possibly be [435 U.S. 618, 643] an excuse for barring him from office by state-imposed criteria forbidden by the Constitution." Id., at 495-496. Except for the fact that Tennessee bases its disqualification not on a person's statement of belief, but on his decision to pursue a religious vocation as directed by his belief, that case is indistinguishable from this one - and that sole distinction is without constitutional consequence. *

[Footnote *] In Cantwell v. Connecticut, 310 U.S. 296, 303 -304, this Court recognized that "the [First] Amendment embraces two concepts, - freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be." This distinction reflects the judgment that, on the one hand, government has no business prying into people's minds or dispensing benefits according to people's religious beliefs, and, on the other, that acts harmful to society should not be immune from proscription simply because the actor claims to be religiously inspired. The disability imposed on McDaniel, like the one imposed on Torcaso, implicates the "freedom to believe" more than the less absolute "freedom to act." As did Maryland in Torcaso, Tennessee here has penalized an individual for his religious status - for what he is and believes in - rather than for any particular act generally deemed harmful to society.


FindLaw: Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980)

http://laws.findlaw.com/us/447/74.html

We initially conclude that this case is properly before us as an appeal under 28 U.S.C. 1257 (2). It has long been established that a state constitutional provision is a "statute" within the meaning of 1257 (2). See, e. g., Torcaso v. Watkins, 367 U.S. 488, 489 (1961); Adamson v. California, 332 U.S. 46, 48 , n. 2 (1947); Railway Express Agency, Inc. v. Virginia, 282 U.S. 440 (1931).


FindLaw: Widmar v. Vincent, 454 U.S. 263 (1981)

http://laws.findlaw.com/us/454/263.html

Operation of the Free Exercise Clause is equally dependent, in certain circumstances, on recognition of a content-based distinction between religious and secular speech. Thus, in Torcaso v. Watkins, 367 U.S. 488 (1961), the Court struck down, as violative of the Free Exercise Clause, a state requirement that made a declaration of belief in God a condition of state employment. A declaration is again a speech act, but it was the content of the speech that brought the case within the scope of the Free Exercise Clause.


FindLaw: Thomas v. Review Bd., Ind. Empl. Sec. Div., 450 U.S. 707 (1981)

http://laws.findlaw.com/us/450/707.html

Only beliefs rooted in religion are protected by the Free Exercise Clause, which, by its terms, gives special protection to the exercise of religion. Sherbert v. Verner, supra; Wisconsin [450 U.S. 707, 714] v. Yoder, 406 U.S. 205, 215 -216 (1972). The determination of what is a "religious" belief or practice is more often than not a difficult and delicate task, as the division in the Indiana Supreme Court attests. [7] However, the resolution of that question is not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.

[Footnote 7] See, e. g., Torcaso v. Watkins, 367 U.S. 488, 495 (1961); United States v. Ballard, 322 U.S. 78 (1944).

Justice Rehnquist, dissenting.

Justice Stewart noted this point in his concurring opinion in Sherbert, 374 U.S., at 414 -417. He observed that decisions like Sherbert, and the one rendered today, squarely conflict with the more extreme language of many of our prior Establishment Clause cases. In Everson v. Board of Education, 330 U.S. 1 (1949), the Court stated that the Establishment Clause bespeaks a "government . . . stripped of all power . . . to support, or otherwise to assist any or all religions . . .," and no State "can pass laws which aid one religion . . . [or] all religions." Id., at 11, 15. In Torcaso v. Watkins, 367 U.S. 488, 495 (1961), the Court asserted that the government cannot "constitutionally pass laws or impose requirements which aid all religions as against non-believers." And in Abington School District v. Schempp, 374 U.S. 203, 217 (1963), the Court adopted Justice Rutledge's words in Everson that the Establishment Clause forbids "`every form of public aid or support for religion.'" See also Engel v. Vitale, 370 U.S. 421, 431 (1962).


FindLaw: Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982)

http://laws.findlaw.com/us/459/116.html

Appellants contend that the State may, without impinging on the Establishment Clause of the First Amendment, enforce what it describes as a "zoning" law in order to shield schools and places of divine worship from the presence nearby of liquor-dispensing establishments. It is also contended that a zone of protection around churches and schools is essential to protect diverse centers of spiritual, educational, and cultural enrichment. It is to that end that the State has vested in the governing bodies of all schools, public or private, and all churches, [3] the power to prevent the issuance [459 U.S. 116, 121] of liquor licenses for any premises within 500 feet of their institutions.

[Footnote 3] Section 16C defines "church" as: "a church or synagogue building dedicated to divine worship" (emphasis added). Appellee argues that the statute unconstitutionally differentiates between theistic and nontheistic religions. We need not reach that issue. For purposes of this appeal, we [459 U.S. 116, 121] assume, as did the original panel of the Court of Appeals, that the Massachusetts courts would apply the protections of 16C to "any building primarily used as a place of assembly by a bona fide religious group," 662 F.2d, at 97, and thereby avoid serious constitutional questions that would arise concerning a statute that distinguishes between religions on the basis of commitment to belief in a divinity. See Torcaso v. Watkins, 367 U.S. 488, 495 (1961); Everson v. Board of Education, 330 U.S. 1, 15 (1947).


FindLaw: Marsh v. Chambers, 463 U.S. 783 (1983)

http://laws.findlaw.com/us/463/783.html

The imperatives of separation and neutrality are not limited to the relationship of government to religious institutions or denominations, but extend as well to the relationship of government to religious beliefs and practices. In Torcaso v. Watkins, 367 U.S. 488 (1961), for example, we struck down a state provision requiring a religious oath as a qualification to hold office, not

only because it violated principles of free exercise of religion, but also because it violated the principles of nonestablishment of religion. And, of course, in the pair of cases that hang over this one like a reproachful set of parents, we held that official prayer and prescribed Bible reading in the public schools represent a serious encroachment on the Establishment Clause. Schempp,

supra; Engel, supra. As we said in Engel, "[i]t is neither sacrilegious nor anti-religious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance." 370 U.S., at 435 (footnote omitted).


FindLaw: CONNICK v. MYERS, 461 U.S. 138 (1983)

http://laws.findlaw.com/us/461/138.html

The Court cast new light on the matter in a series of cases arising from the widespread efforts in the 1950's and early 1960's to require public employees, particularly teachers, to swear oaths of loyalty to the State and reveal the groups with which they associated. In Wiemann v. Updegraff, 344 U.S. 183 (1952), the Court held that a State could not require its employees to establish their loyalty by extracting an oath denying past affiliation with Communists. In Cafeteria Workers v. McElroy, 367 U.S. 886 (1961), the Court recognized that the government could not deny employment because of previous membership in a particular party. See also Shelton v. Tucker, 364 U.S. 479, 490 (1960); Torcaso v. Watkins, 367 U.S. 488 (1961); Cramp v. Board of Public Instruction, 368 U.S. 278 (1961).


FindLaw: Lynch v. Donnelly, 465 U.S. 668 (1984)

http://laws.findlaw.com/us/465/668.html

Justice Brennan, with whom Justice Marshall, Justice Blackmun, and Justice Stevens join, dissenting.

Last Term, I expressed the hope that the Court's decision in Marsh v. Chambers, 463 U.S. 783 (1983), would prove to be only a single, aberrant departure from our settled method [465 U.S. 668, 696] of analyzing Establishment Clause cases. Id., at 796 (Brennan, J., dissenting). That the Court today returns to the settled analysis of our prior cases gratifies that hope. At the same time, the Court's less-than-vigorous application of the Lemon test suggests that its commitment to those standards may only be superficial. 2 After reviewing the Court's opinion, I am convinced that this case appears hard not because the principles of decision are obscure, but because the Christmas holiday seems so familiar and agreeable. Although the [465 U.S. 668, 697] Court's reluctance to disturb a community's chosen method of celebrating such an agreeable holiday is understandable, that cannot justify the Court's departure from controlling precedent. In my view, Pawtucket's maintenance and display at public expense of a symbol as distinctively sectarian as a creche simply cannot be squared with our prior cases. And it is plainly contrary to the purposes and values of the Establishment Clause to pretend, as the Court does, that the otherwise secular setting of Pawtucket's nativity scene dilutes in some fashion the creche's singular religiosity, or that the city's annual display reflects nothing more than an "acknowledgment" of our shared national heritage. Neither the character of the Christmas holiday itself, nor our heritage of religious expression supports this result. Indeed, our remarkable and precious religious diversity as a Nation, see Torcaso v. Watkins, 367 U.S. 488, 495 (1961); Abington School Dist. v. Schempp, 374 U.S. 203, 240 -241 (1963) (Brennan, J., concurring), which the Establishment Clause seeks to protect, runs directly counter to today's decision.


FindLaw: Wallace v. Jaffree, 472 U.S. 38 (1985)

http://laws.findlaw.com/us/472/38.html

Just as the right to speak and the right to refrain from speaking are complementary components of a broader concept of individual freedom of mind, so also the individual's freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed established by the majority. At one time it was thought that this right merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism. 36 But when the underlying principle has been examined in the crucible of litigation, the [472 U.S. 38, 53] Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all. 37 This conclusion derives support not only from the interest in respecting the individual's freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of free and voluntary choice by the faithful, 38 [472 U.S. 38, 54] and from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects - or even intolerance among "religions" - to encompass intolerance of the disbeliever and the uncertain. 39 [472 U.S. 38, 55]

As Justice Jackson eloquently stated in West Virginia Board of Education v. Barnette, 319 U.S. 624, 642 (1943):

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."

The State of Alabama, no less than the Congress of the United States, must respect that basic truth.

[Footnote 36] Thus Joseph Story wrote:

"Probably at the time of the adoption of the constitution, and of the amendment to it, now under consideration [First Amendment], the general, if not the universal sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship.

An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation." 2 J. Story, Commentaries on the Constitution of the United States 1874, p. 593 (1851) (footnote omitted).

In the same volume, Story continued:

"The real object of the amendment was, not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among christian sects, and to prevent any national ecclesiastical establishment, which should give to a hierarchy the exclusive patronage of the national government. It thus cut off the means of religious persecution, (the vice and pest of former ages,) and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age. . . ." Id., 1877, at 594 (emphasis supplied).

[Footnote 37] Thus, in Everson v. Board of Education, 330 U.S., at 15 , the Court stated:

"The `establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another."

Id., at 18 (the First Amendment "requires the state to be a neutral in its relations with groups of religious believers and non-believers"); Abington School District v. Schempp, 374 U.S., at 216 ("this Court has rejected unequivocally the contention that the Establishment Clause forbids only governmental preference of one religion over another"); id., at 226 ("The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of the government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality"); Torcaso v. Watkins, 367 U.S. 488, 495 (1961) ("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, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs").

[Footnote 38] In his "Memorial and Remonstrance Against Religious Assessments, 1785," James Madison wrote, in part:

"1. Because we hold it for a fundamental and undeniable truth, `that Religion or the duty which we owe to our Creator and the [Manner of discharging it, can be directed only by reason and] conviction, not by force or violence.' The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is [472 U.S. 38, 54] unalienable; because the opinions of men, depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men: It is unalienable also; because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. . . . We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance.

"3. Because, it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens, and one of [the] noblest characteristics of the late Revolution. The freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much, soon to forget it. Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?" The Complete Madison 299-301 (S. Padover ed. 1953).

See also Engel v. Vitale, 370 U.S. 421, 435 (1962) ("It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look for religious guidance").

[Footnote 39] As the Barnette opinion explained, it is the teaching of history, rather than any appraisal of the quality of a State's motive, that supports this duty to respect basic freedoms:

"Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary [472 U.S. 38, 55] to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing.

Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard." 319 U.S., at 640 -641.

See also Engel v. Vitale, 370 U.S., at 431 ("a union of government and religion tends to destroy government and to degrade religion").


FindLaw: Teachers v. Hudson, 475 U.S. 292 (1986)

http://laws.findlaw.com/us/475/292.html

We also held, however, that nonunion employees do have a constitutional right to [475 U.S. 292, 302] "prevent the Union's spending a part of their required service fees to contribute to political candidates and to express political views unrelated to its duties as exclusive bargaining representative." Id., at 234. 9

[Footnote 9] We explained that this right is firmly grounded in the First Amendment:

"The fact that the appellants are compelled to make, rather than prohibited from making, contributions for political purposes works no less an infringement of their constitutional rights. For at the heart of the First Amendment is the notion that an individual should be free to believe as he will, and that in a free society one's beliefs should be shaped by his mind and his conscience rather than coerced by the State. See Elrod v. Burns, [427 U.S.], at 356-357; Stanley v. Georgia, 394 U.S. 557, 565 ; Cantwell v. Connecticut, 310 U.S. 296, 303 -304. . . .

"These principles prohibit a State from compelling any individual to affirm his belief in God, Torcaso v. Watkins, 367 U.S. 488 , or to associate with a political party, Elrod v. Burns, supra; see 427 U.S., at 363 -364, n. 17, as a condition of retaining public employment. They are no less applicable to the case at bar, and they thus prohibit the appellees from requiring any of the appellants to contribute to the support of an ideological cause he may oppose as a condition of holding a job as a public school teacher." 431 U.S., at 234 -235 (footnote omitted).


FindLaw: Edwards v. Aguillard, 482 U.S. 578 (1987)

http://laws.findlaw.com/us/482/578.html

Louisiana's "Creationism Act" forbids the teaching of the theory of evolution in public elementary and secondary schools unless accompanied by instruction in the theory of "creation science." The Act does not require the teaching of either theory unless the other is taught. It defines the theories as "the scientific evidences for [creation or evolution] and inferences from those scientific evidences." Appellees, who include Louisiana parents, teachers, and religious leaders, challenged the Act's constitutionality in Federal District Court, seeking an injunction and declaratory relief. The District Court granted summary judgment to appellees, holding that the Act violated the Establishment Clause of the First Amendment.

The Court of Appeals affirmed.

Held:

1. The Act is facially invalid as violative of the Establishment Clause of the First Amendment, because it lacks a clear secular purpose. pp. 585-594.

(a) The Act does not further its stated secular purpose of "protecting academic freedom." It does not enhance the freedom of teachers to teach what they choose and fails to further the goal of"teaching all of the evidence." Forbidding the teaching of evolution when creation science is not also taught undermines the provision of a comprehensive scientific education. Moreover, requiring the teaching of creation science with evolution does not give schoolteachers a flexibility that they did not already possess to supplant the present science curriculum with the presentation of theories, besides evolution, about the origin of life. Furthermore, the contention that the Act furthers a "basic concept of fairness" by requiring the teaching of all of the evidence on the subject is without merit. Indeed, the Act evinces a discriminatory preference for the teaching of creation science and against the teaching of evolution by requiring that curriculum guides be developed and resource services supplied for teaching creationism but not for teaching evolution, by limiting membership on the resource services panel to "creation scientists," and by forbidding school boards to discriminate against anyone who "chooses to be a creation-scientist" or to teach creation science, while failing to protect those who choose to teach other theories or who refuse to teach creation science. A [482 U.S. 578, 579] law intended to maximize the comprehensiveness and effectiveness of science instruction would encourage the teaching of all scientific theories about human origins. Instead, this Act has the distinctly different purpose of discrediting evolution by counter-balancing its teaching at every turn with the teaching of creationism. pp. 586-589.

(b) The Act impermissibly endorses religion by advancing the religious belief that a supernatural being created humankind. The legislative history demonstrates that the term "creation science," as contemplated by the state legislature, embraces this religious teaching. The Act's primary purpose was to change the public school science curriculum to provide persuasive advantage to a particular religious doctrine that rejects the factual basis of evolution in its entirety. Thus, the Act is designed either to promote the theory of creation science that embodies a particular religious tenet or to prohibit the teaching of a scientific theory disfavored by certain religious sects. In either case, the Act violates the First Amendment. pp. 589-594.

2. The District Court did not err in granting summary judgment upon a finding that appellants had failed to raise a genuine issue of material fact. Appellants relied on the "uncontroverted" affidavits of scientists, theologians, and an education administrator defining creation science as "origin through abrupt appearance in complex form" and alleging that such a viewpoint constitutes a true scientific theory. The District Court, in its discretion, properly concluded that the postenactment testimony of these experts concerning the possible technical meanings of the Act's terms would not illuminate the contemporaneous purpose of the state legislature when it passed the Act. None of the persons making the affidavits produced by appellants participated in or contributed to the enactment of the law. pp. 594-596.

765 F.2d 1251, affirmed.


Furthermore, it is not happenstance that the legislature required the teaching of a theory that coincided with this religious view. The legislative history documents that the Act's primary purpose was to change the science curriculum of public schools in order to provide persuasive advantage to a particular religious doctrine that rejects the factual basis of evolution in its entirety. The sponsor of the Creationism Act, Senator Keith, explained during the legislative hearings that his disdain for the theory of evolution resulted from the support that evolution supplied to views contrary to his own religious beliefs. According to Senator Keith, the theory of evolution was consonant with the "cardinal principle[s] of religious humanism, secular humanism, theological liberalism, aetheistism [sic]." 1 App. E-312-E-313; see also 2 App. E-499-E-500. The state senator repeatedly stated that scientific evidence supporting his religious views should be included in the public school curriculum to redress the fact that the theory of evolution incidentally coincided with what he characterized as religious beliefs antithetical to his own. 14 [482 U.S. 578, 593] The legislation therefore sought to alter the science curriculum to reflect endorsement of a religious view that is antagonistic to the theory of evolution.

(5) The censorship of creation science has at least two harmful effects. First, it deprives students of knowledge of one of the two scientific explanations for the origin of life and leads them to believe that evolution is proven fact; thus, their education suffers and they are wrongly taught that science has proved their religious beliefs false. Second, it violates the Establishment Clause. The United States Supreme Court has held that secular humanism is a religion. Id., at E-36 (Sen. Keith) (referring to Torcaso v. Watkins, 367 U.S. 488, 495 , n. 11 (1961)); 1 App. E-418 (Sen. Keith); 2 id., at E-499 (Sen. Keith). Belief in evolution is a central tenet of that religion. 1 id., at E-282 (Sen. Keith); id., at E-312 - E-313 (Sen. Keith); id., at E-317 (Sen. Keith); id., at E-418 (Sen. Keith); 2 id., at E-499 (Sen. Keith). Thus, by censoring creation science and instructing students that evolution is fact, public school teachers are now advancing religion in violation of the Establishment Clause. 1 id., at E-2 - E-4 [482 U.S. 578, 625] (Sen. Keith); id., at E-36 - E-37, E-39 (Sen. Keith); id., at E-154 - E-155 (Boudreaux paper); id., at E-281 - E-282 (Sen. Keith); id., at E-313 (Sen. Keith); id., at E-315 - E-316 (Sen. Keith); id., at E-317 (Sen. Keith); 2 id., at E-499 - E-500 (Sen. Keith).

Senator Keith repeatedly and vehemently denied that his purpose was to advance a particular religious doctrine. At the outset of the first hearing on the legislation, he testified: "We are not going to say today that you should have some kind of religious instructions in our schools. . . . We are not talking about religion today. . . . I am not proposing that we take the Bible in each science class and read the first chapter of Genesis." 1 id., at E-35. At a later hearing, Senator Keith stressed: "[T]o . . . teach religion and disguise it as creationism . . . is not my intent. My intent is to see to it that our textbooks are not censored." Id., at E-280. He made many similar statements throughout the hearings. See, e. g., id., at E-41; id., at E-282; id., at E-310; id., at E-417; see also id., at E-44 (Boudreaux); id., at E-80 (Kalivoda). [Footnote 6] As the majority recognizes, ante, at 592, Senator Keith sincerely believed that "secular humanism is a bona fide religion," 1 App. E-36; see also id., at E-418; 2 id., at E-499, and that "evolution is the cornerstone of that religion," 1 id., at E-418; see also id., at E-282; id., at E-312 - E-313; id., at E-317; 2 id., at E-499. The Senator even told his colleagues that this Court had "held" that secular humanism was a religion. See 1 id., at E-36, id., at E-418; 2 id., at E-499. (In Torcaso v. Watkins, 367 U.S. 488, 495 , n. 11 (1961), we did indeed refer to "Secular Humanism" as a "religio[n].") Senator Keith and his supporters raised the "religion" of secular humanism not, as the majority suggests, to explain the source of their "disdain for the theory of evolution," ante, at 592, but to convince the legislature that the State of Louisiana was violating the Establishment Clause because its teachers were misrepresenting evolution as fact and depriving students of the information necessary to question that theory. 1 App. E-2 - E-4 (Sen. Keith); id., at E-36 - E-37, E-39 (Sen. Keith); id., at E-154 - E-155 (Boudreaux paper); id., at E-281 - E-282 (Sen. Keith); id., at E-317 (Sen. Keith); 2 id., at E-499 - E-500 (Sen. Keith). The Senator repeatedly urged his colleagues to pass his bill to remedy this Establishment Clause violation by ensuring state neutrality in religious matters, see, e. g., 1 id., at E-36; id., at E-39; id., at E-313, surely a permissible purpose under Lemon. Senator Keith's argument may be questionable, but nothing in the statute or its legislative history gives us reason to doubt his sincerity or that of his supporters.


FindLaw: Employment Division v. Smith, 485 U.S. 660 (1988)

http://laws.findlaw.com/us/485/660.html

In Sherbert, as in Thomas and Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 142 (1987), the conduct that gave rise to the termination of employment was perfectly legal; 12 indeed, the Court assumed that it was immune from state regulation. (13) [485 U.S. 660, 671]

[Footnote 13] The distinction between the absolute constitutional protection against governmental regulation of religious beliefs on the one hand, and the qualified [485 U.S. 660, 671] protection against the regulation of religiously motivated conduct, on the other, was carefully explained in our opinion in Sherbert:

"The door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs as such, Cantwell v. Connecticut, 310 U.S. 296, 303 . Government may neither compel affirmation of a repugnant belief, Torcaso v. Watkins, 367 U.S. 488 ; nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities, Fowler v. Rhode Island, 345 U.S. 67 ; nor employ the taxing power to inhibit the dissemination of particular religious views, Murdock v. Pennsylvania, 319 U.S. 105 ; Follett v. McCormick, 321 U.S. 573 ; cf. Grosjean v. American Press Co., 297 U.S. 233 . On the other hand, the Court has rejected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs or principles, for `even when the action is in accord with one's religious convictions, [it] is not totally free from legislative restrictions.' Braunfeld v. Brown, 366 U.S. 599, 603 . The conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order. See, e. g., Reynolds v. United States, 98 U.S. 145 ; Jacobson v. Massachusetts, 197 U.S. 11 ; Prince v. Massachusetts, 321 U.S. 158 ; Cleveland v. United States, 329 U.S. 14 .


FindLaw: Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989)

http://laws.findlaw.com/us/489/1.html

In proscribing all laws "respecting an establishment of religion," the Constitution prohibits, at the very least, legislation that constitutes an endorsement of one or another set of religious beliefs or of religion generally. It is part of our settled jurisprudence that "the Establishment Clause prohibits government from abandoning secular purposes in order to put an imprimatur on one religion, or on religion as such, or [489 U.S. 1, 9] to favor the adherents of any sect or religious organization." Gillette v. United States, 401 U.S. 437, 450 (1971). See, e. g., School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 381 (1985); Wallace v. Jaffree, 472 U.S. 38, 52 -53, and n. 37 (1985); Welsh v. United States, 398 U.S. 333, 356 -357 (1970) (Harlan, J., concurring in result); Epperson v. Arkansas, 393 U.S. 97, 103 -104 (1968); Abington School Dist. v. Schempp, 374 U.S. 203, 216 -217 (1963); Torcaso v. Watkins, 367U.S. 488, 495 (1961); Everson v. Board of Education of Ewing, 330 U.S. 1, 15 -16 (1947).

Justice Blackmun, with whom Justice O'Connor joins, concurring in the judgment.

The Free Exercise Clause value suggests that a State may not impose a tax on spreading the gospel. See Follett v. McCormick, 321 U.S. 573 (1944), and Murdock v. Pennsylvania, 319 U.S. 105 (1943). The Establishment Clause value suggests that a State may not give a tax break to those who spread the gospel that it does not also give to others who actively might advocate disbelief in religion. See Torcaso v. Watkins, 367 U.S. 488, 495 (1961); Everson v. Board of Education of Ewing, 330 U.S. 1, 15 -16 (1947).

Justice Brennan's opinion, in its Part IV, would resolve the tension between the Free Exercise and Establishment Clause values simply by subordinating the Free Exercise value, even, it seems to me, at the expense of longstanding precedents. See ante, at 21-25 (repudiating Follett and Murdock to the extent inconsistent with the newfound proposition that a State generally may tax the sale of a Bible by a church). Justice Scalia'sopinion, conversely, would subordinate the Establishment Clause value. This position, it seems to me, runs afoul of the previously settled notion that government may not favor religious belief over disbelief. See, e. g., Wallace v. Jaffree, 472 U.S. 38, 53 (1985); Welsh v. United States, 398 U.S. 333, 356 (1970) (Harlan, J., concurring in result); Epperson v. Arkansas, 393 U.S. 97, 103 -104 (1968); Abington School District v. Schempp, 374 U.S. 203, 218 , 220 (1963); Torcaso v. Watkins, 367 U.S., at 495 .


FindLaw: Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573

(1989)

http://laws.findlaw.com/us/492/573.html

In the course of adjudicating specific cases, this Court has come to understand the Establishment Clause to mean that government may not promote or affiliate itself with any religious doctrine or organization, 40 may not discriminate among persons on the basis of their religious beliefs and practices, 41 [492 U.S. 573, 591] may not delegate a governmental power to a religious institution, 42 and may not involve itself too deeply in such an institution's affairs. 43 Although "the myriad, subtle ways in which Establishment Clause values can be eroded," Lynch v. Donnelly, 465 U.S., at 694 (O'Connor, J., concurring), are not susceptible to a single verbal formulation, this Court has attempted to encapsulate the essential precepts of the Establishment Clause. Thus, in Everson v. Board of Education of Ewing, 330 U.S. 1 (1947), the Court gave this often-repeated summary:

[Footnote 41] A statute that conditions the holding of public office on a belief in the existence of God is unconstitutional, Torcaso v. Watkins, 367 U.S. 488 (1961),. . .

Justice Kennedy, with whom the Chief Justice, Justice White, and Justice Scalia join, concurring in the judgment in part and dissenting in part.

It is no surprise that without exception we have invalidated actions that further the interests of religion through the coercive power of government. Forbidden involvements include compelling or coercing participation or attendance at a religious activity, see Engel v. Vitale, 370 U.S. 421 (1962); McGowan v. Maryland, supra, at 452 (discussing McCollum v. Board of Education of School Dist. No. 71, Champaign County, supra), requiring religious oaths to obtain government office or benefits, Torcaso v. Watkins, 367 U.S. 488 (1961), or delegating government power to religious groups, Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982).


FindLaw: Employment Div., Ore. Dept. Of Human Res. v. Smith, 494 U.S.

872 (1990)

http://laws.findlaw.com/us/494/872.html

The Free Exercise Clause of the First Amendment, which has been made applicable to the States by incorporation into [494 U.S. 872, 877] the Fourteenth Amendment, see Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ." U.S. Const., Amdt. 1 (emphasis added). The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires. Thus, the First Amendment obviously excludes all "governmental regulation of religious beliefs as such." Sherbert v. Verner, supra, at 402. The government may not compel affirmation of religious belief, see Torcaso v. Watkins, 367 U.S. 488 (1961), punish the expression of religious doctrines it believes to be false, United States v. Ballard, 322 U.S. 78, 86 -88 (1944), impose special disabilities on the basis of religious views or religious status, see McDaniel v. Paty, 435 U.S. 618 (1978); Fowler v. Rhode Island, 345 U.S. 67, 69 (1953); cf. Larson v. Valente, 456 U.S. 228, 245 (1982), or lend its power to one or the other side in controversies over religious authority or dogma, see Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 445 -452 (1969); Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 95 -119 (1952); Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 708 -725 (1976).

The "compelling government interest" requirement seems benign, because it is familiar from other fields. But using it as the standard that must be met before the government may accord different treatment on the basis of race, see, e. g., [494 U.S. 872, 886] Palmore v. Sidoti, 466 U.S. 429, 432 (1984), or before the government may regulate the content of speech, see, e. g., Sable Communications of California v. FCC, 492 U.S. 115, 126 (1989), is not remotely comparable to using it for the purpose asserted here. What it produces in those other fields - equality of treatment and an unrestricted flow of contending speech - are constitutional norms; what it would produce here - a private right to ignore generally applicable laws - is a constitutional anomaly.3

[Footnote 3] Justice O'Connor suggests that "[t]here is nothing talismanic about neutral laws of general applicability," and that all laws burdening religious practices should be subject to compelling-interest scrutiny because "the First Amendment unequivocally makes freedom of religion, like freedom from race discrimination and freedom of speech, a `constitutional nor[m],' not an `anomaly.'" Post, at 901 (opinion concurring in judgment). But this comparison with other fields supports, rather than undermines, the conclusion we draw today. Just as we subject to the most exacting scrutiny laws that make classifications based on race, see Palmore v. Sidoti, 466 U.S. 429 (1984), or on the content of speech, see Sable Communications of California v. FCC, 492 U.S. 115 (1989), so too we strictly scrutinize governmental classifications based on religion, see McDaniel v. Paty, 435 U.S. 618 (1978); see also Torcaso v. Watkins, 367 U.S. 488 (1961). But we have held that race-neutral laws that have the effect of disproportionately disadvantaging a particular racial group do not thereby become subject to compelling-interest analysis under the Equal Protection Clause, see Washington v. Davis, 426 U.S. 229 (1976) (police employment examination); and we have held that generally applicable laws unconcerned with regulating speech that have the effect of interfering with speech do not thereby become subject to compelling-interest analysis under the First Amendment, see Citizen Publishing Co. v. United States, 394 U.S. 131, 139 (1969) (antitrust laws). Our conclusion that generally applicable, religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling governmental interest is the only approach compatible with these precedents.


FindLaw: Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990)

http://laws.findlaw.com/us/497/62.html

Nonetheless, respondents contend that the burden imposed is not of constitutional magnitude. 9 Decades of decisions by this Court belie such a claim. We premised Torcaso v. Watkins, 367 U.S. 488 (1961), on our understanding that loss of a job opportunity for failure to compromise one's convictions states a constitutional claim. We held that Maryland could not refuse an appointee a commission for the position of notary public on the ground that he refused to declare his belief in God, because the required oath "unconstitutionally invades the appellant's freedom of belief and religion." Id., at 496. In Keyishian v. Board of Regents of Univ. of New York, 385 U.S. 589, 609 -610 (1967), we held a law affecting appointment and retention of teachers invalid because it premised employment on an unconstitutional restriction of political belief and association. In Elfbrandt v. Russell, 384 U.S. 11, 19 (1966), we struck down a loyalty oath which was a prerequisite for public employment.

Justice Stevens, concurring.

"`We have applied this general principle to denials of tax exemptions, Speiser v. Randall, supra, unemployment benefits, Sherbert v. Verner, 374 U.S. 398, 404 -405 [(1963)], and welfare payments, Shapiro v. Thompson, 394 U.S. 618, 627 n. 6 [(1969)]; Graham v. Richardson, 403 U.S. 365, 374 [(1971)]. But, most often, we have applied the principle to denials of public employment. United Public Workers v. Mitchell, 330 U.S. 75, 100 [(1947)]; Wieman v. Updegraff, 344 U.S. 183, 192 [(1952)]; Shelton v. Tucker, 364 U.S. 479, 485 -486 [(1960)]; Torcaso v. Watkins, 367 U.S. 488, 495-496 [(1961)]; Cafeteria and Restaurant Workers, etc. v. McElroy, 367 U.S. 886, 894 [(1961)]; Cramp v. Board of Public Instruction, 368 U.S. 278, 288 ; [(1961)]; Baggett v. Bullitt, 377 U.S. 360 [(1964)]; Elfbrandt v. Russell, 384 U.S. [11,] 17 [(1966)]; Keyishian v. Board of Regents, 385 U.S. 589, 605 -06 [(1967)]; Whitehill v. Elkins, 389 U.S. 54 [(1967)]; United States v. Robel, 389 U.S. 258 [(1968)]; Pickering v. Board of Education, 391 U.S. 563, 568 [(1968)]. We have applied the principle regardless of the public employee's contractual or other claim to a job. Compare Pickering v. Board of Education, supra, with Shelton v. Tucker, supra'.


FindLaw: Lehnert v. Ferris Faculty Assn, 500 U.S. 507 (1991)

http://laws.findlaw.com/us/500/507.html

Third, the Court established that the constitutional principles that prevent a State from conditioning public employment upon association with a political party, see Elrod v. Burns, 427 U.S. 347 (1976) (plurality opinion), or upon professed religious allegiance, see Torcaso v. Watkins, 367 U.S. 488 (1961), similarly prohibit a public employer "from requiring [an employee] to contribute to the support of an ideological cause he may oppose as a condition of holding a job" as a public educator. 431 U.S. at 235.


FindLaw: Lee v. Weisman, 505 U.S. 577 (1992)

http://laws.findlaw.com/us/505/577.html

Justice Souter, with whom Justice Stevens and Justice O'Connor join, concurring.

Likewise, in Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989), we struck down a state tax exemption benefiting only religious periodicals; even though the statute in question worked no discrimination among sects, a majority of the Court found that its preference for religious publications over all other kinds "effectively endorses religious belief." Id., at 17 (plurality opinion); see id., at 28 (Blackmun, J., concurring in judgment) ("A statutory preference for the dissemination of religious ideas offends our most basic understanding of what the Establishment Clause is all about, and hence is constitutionally intolerable"). And in Torcaso v. Watkins, 367 U.S. 488 (1961), we struck down a provision of the Maryland Constitution requiring public officials to declare a "`belief in the existence of God,'" id., at 489, reasoning that, under the Religion Clauses of the First Amendment, "neither a State nor the Federal Government . . . can constitutionally pass laws or impose requirements which aid all religions as against non-believers . . .," id., at 495. See also Epperson v. Arkansas, 393 U.S. 97, 104 (1968) ("The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion"); School Dist. of Abington v. Schempp, 374 U.S. 203, 216 (1963) ("this Court has rejected unequivocally the contention that the Establishment Clause forbids only governmental preference of one religion over another"); id., at 319-320 (Stewart, J., dissenting) (the Clause applies "to each of us, be he Jew or Agnostic, Christian or Atheist, Buddhist or Freethinker").

While petitioners insist that the prohibition extends only to the "coercive" features and incident of establishment, they cannot easily square that claim with the constitutional text. The First Amendment forbids not just laws "respecting an establishment of religion," but also those "prohibiting the free exercise thereof." Yet laws that coerce nonadherents to "support or participate in any religion or its exercise," County of Allegheny, supra, at 659-660 (opinion of KENNEDY, J.), would, virtually by definition, violate their right to religious free exercise. See Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 877 (1990) (under Free Exercise Clause, "government may not compel affirmation of religious belief"), citing Torcaso v. Watkins, 367 U.S. 488 (1961); see also J. Madison, Memorial and Remonstrance Against Religious Assessments (1785) (compelling support for religious establishments violates "free exercise of Religion"), quoted in 5 The Founders' Constitution, at 82, 84. Thus, a literal application of the coercion test would render the Establishment Clause a virtual nullity, as petitioners' counsel essentially conceded at oral argument. Tr. of Oral Arg. 18.


FindLaw: Board of Ed. Of Kiryas Joel v. GrumeT, ___ U.S. ___ (1994)

http://laws.findlaw.com/us/000/u10355.html

Larkin presented an example of united civic and religious authority, an establishment rarely found in such straightforward form in modern America, cf. Wolman v. Walter, 433 U.S. 229, 263 (1977) (Powell, J., concurring in part, concurring in judgment in part, and dissenting in part), and a violation of "the core rationale underlying the Establishment Clause," 459 U.S., at 126 . See also Allegheny County v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 590 -591 (1989) (Establishment Clause prevents delegating governmental power to religious group); id., at 660 (Kennedy, J., concurring in judgment in part and dissenting in part) (same); Everson v. Board of Ed. of Ewing, 330 U.S. 1, 15 -16 (1947) (Establishment Clause prevents State from "participat[ing] in the affairs of any religious organizations or groups and vice versa"); Torcaso v.Watkins, 367 U.S. 488, 493 -494 (1961) (same).

Justice Cardozo once cast the dissenter as "the gladiator making a last stand against the lions." B. Cardozo, Law and Literature 34 (1931). Justice Scalia's dissent is certainly the work of a gladiator, but he thrusts at lions of his own imagining. We do not disable a religiously homogeneous group from exercising political power conferred on it without regard to religion. Cf. post, at 5-6. Unlike the states of Utah and New Mexico (which were laid out according to traditional political methodologies taking account of lines of latitude and longitude and topographical features, see F. Van [BOARD OF ED. OF KIRYAS JOEL v. GRUMET, ___ U.S. ___ (1994) , 21] Zandt, Boundaries of the United States and the Several States 250-257 (1966)), the reference line chosen for the Kiryas Joel Village School District was one purposely drawn to separate Satmars from non-Satmars. Nor do we impugn the motives of the New York Legislature, cf. post, at 7-10, which no doubt intended to accommodate the Satmar community without violating the Establishment Clause; we simply refuse to ignore that the method it chose is one that aids a particular religious community, as such, see App. 19-20 (Assembly sponsor thrice describes the Act's beneficiaries as the "Hasidic" children or community), rather than all groups similarly interested in separate schooling. The dissent protests it is novel to insist "up front" that a statute not tailor its benefits to apply only to one religious group, post, at 17-19, but, if this were so, Texas Monthly, Inc. would have turned out differently, see 489 U.S., at 14 -15 (plurality opinion); id., at 28 (Blackmun, J., concurring in judgment), and language in Walz v. Tax Comm'n of New York City, 397 U.S., at 673 , and Bowen v. Kendrick, 487 U.S., at 608 , purporting to rely on the breadth of the statutory schemes would have been mere surplusage. Indeed, under the dissent's theory, if New York were to pass a law providing school buses only for children attending Christian day schools, we would be constrained to uphold the statute against Establishment Clause attack until faced by a request from a non-Christian family for equal treatment under the patently unequal law. Cf. Everson v. Board of Ed. of Ewing, 330 U.S., at 17 (upholding school bus service provided all pupils). And to end on the point with which Justice Scalia begins, the license he takes in suggesting that the Court holds the Satmar sect to be New York's established church, see post, at 1, is only one symptom of his

inability to accept the fact that this Court has long held that the First Amendment reaches more than [Board of Ed. Of Kiryas Joel v. Grumet, ___ U.S. ___ (1994) , 22] classic, 18th century establishments. See Torcaso v. Watkins, 367 U.S., at 492 -495.

Justice O'Connor, concurring in part and concurring in the judgment.

We have time and again held that the government generally may not treat people differently based on the God or gods they worship, or don't worship. "The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another." Larson v. Valente, 456 U.S. 228, 244 (1982). "Just as we subject to the most exacting scrutiny laws that make classifications based on race . . . so too we strictly scrutinize governmental classifications based on religion." Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 886 , n. 3 (1990). "[T]he Establishment Clause prohibits government from abandoning secular purposes . . . to favor the adherents of any sect or religious organization." Gillette v. United States, 401 U.S. 437, 450 (1971). "Neither [the State nor the Federal Governments] can constitutionally pass laws or impose requirements which aid all religions as against nonbelievers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs." Torcaso v. Watkins, 367 U.S. 488, 495 (1961)

(footnote omitted). See also Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 8 -9 (1989) (plurality opinion); id., at 26, 28-29 (Blackmun, J., concurring in judgment); Welsh, supra, at 356 (Harlan, J., concurring); Walz v. Tax Comm'n of New York [Board of Ed. Of Kiryas Joel v. Grumet, ___ U.S. ___ (1994) , 5] City, 397 U.S. 664, 696 -697 (1970) (opinion of Harlan, J.).


FindLaw: Rosenberger v. University of Virginia, ___ U.S. ___ (1995)

http://laws.findlaw.com/us/000/u10271.html

Madison wrote against a background in which nearly [Rosenberger v. University of Virginia, ___ U.S. ___ (1995) , 7] every Colony had exacted a tax for church support, Everson, supra, at 10, n. 8, the practice having become "so commonplace as to shock the freedom-loving colonials into a feeling of abhorrence," 330 U.S., at 11 (footnote omitted). Madison's Remonstrance captured the colonists' "conviction that individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions, or to interfere with the beliefs of any religious individual or group." Ibid. (1) Their [Rosenberger v. University of Virginia, ___ U.S. ___ (1995) , 8]

[Excerpt from FOOTNOTE (1)]

In attempting to recast Madison's opposition as having principally been targeted against "governmental preferences for particular religious faiths," ante, at 4 (emphasis in original), Justice Thomaswishes to wage a battle that was lost long ago, for "this Court has rejected unequivocally the contention that the Establishment Clause forbids only governmental preference of one religion over another," School Dist. of Abington v. Schempp, 374 U.S. 203, 216 (1963); see also Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 17 (1989) (plurality opinion); id., at 28 (Blackmun, J., concurring in judgment); Wallace v. Jaffree, 472 U.S. 38, 52 -53 (1985); Torcaso v. Watkins, 367 U.S. 488, 495 (1961); Engel v. Vitale, 370 U.S. 421, 430 (1962); Everson, supra, at 15; see generally Lee v. Weisman, 505 U.S. 577, 609 -616 (1992) (Souter, J., concurring).

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