ACSBlog: The Blog of the American Constitution Society

In a new issue brief by ACS, Edward Correia offers an examiniation of religious experssion in the public schools and how teachers may, consistent with the First Amendment, acknowledge those religious views.

by Edward Correia, a Washington, D.C. attorney and adjunct professor at the Washington College of Law at American University

There is overwhelming scientific evidence that Darwinian evolution explains the origin of all plants and animals, including human beings. That is why it is taught in American high schools. Nevertheless, a large portion of the American public, particularly religious conservatives, reject evolution and view it as contrary to the Biblical account of creation. As science discovers more and more about the origins of life and the creation of the universe itself, we can expect the same conflicts to emerge with respect to these topics, too. 

At various times, the anti-evolution movement has persuaded legislatures to bar the teaching of evolution altogether or to require that Biblical account of creationist be taught alongside it. More recently, religious conservatives have demanded that a less expressly religious theory of “Intelligent Design” be taught -- or at least that students be made aware of it. By and large these approaches have been rejected by the courts. Another possibility is to let every view be presented, in other words, turn the classroom into a public forum. But creating a public forum would push the classroom experience over the edge into incoherence.

Earlier in the week, a federal judge in Louisiana ordered a public school board there to halt a practice of allowing Bible distribution at an elementary school.

Last year after Principal Andre Pellerin of Loranger Middle School in Tangipahoa Parish allowed an evangelical group, Gideons International, to distribute the Bibles to fifth-graders outside of Pellerin’s office, parents complained about the practice.

One fifth-grader said that she feared being taunted by her peers if she did not take a Bible. The student’s parents sued the school board after it refused to bar distribution of Bibles. Judge Carl J. Barbier, in an 11-page ruling, said the school board’s practice of allowing the Bible distribution was a violation of the First Amendment principle of the separation of church and state. Barbier found that the school board had no secular purpose for allowing the Bible distribution and that in elementary schools, students should not be coerced to engage in religious activities.

The court concluded, in part, that the Bible distribution was “ultimately coercive” as the fifth-grader “was pressured to accept a Bible” in violation of federal court precedent and that the distribution of Bibles “is a religious activity without a secular purpose.”

The school board, which has a long history of defending policies against First Amendment challenges, voted quickly to appeal Barbier’s ruling to the 5th U.S. Circuit Court of Appeals.

Board Attorney Chris Moody told The Advocate, a Baton Rouge daily, that the school board was “very disappointed with the judge’s decision.”

by Richard B. Katskee, assistant legal director of Americans United for Separation of Church and State and attorney who argued before the 3rd U.S. Circuit Court of Appeals in Borden v. School District of the Township of East Brunswick

           The Third Circuit’s decision in Borden v. School District of the Township of East Brunswick is a victory not just for the East Brunswick School District, but for its students — and for religious freedom.

            Marcus Borden has been head football coach at East Brunswick High School in New Jersey for the past two-and-a-half decades. During that entire time, he held team prayers. In the locker-room, he’d get down on his knee with the players, have them all bow their heads, and lead a prayer before every game. And at mandatory pre-game dinners, he’d have the students all stand and bow their heads, and then he’d say grace, or else he would appoint a player to do so.

            But then students and their parents started to complain. One parent even called the superintendent of schools — Dr. Jo Ann Magistro — in tears to say that her son, a player on the football team, was upset about Borden’s fostering team prayers; but her son felt that he had to participate because otherwise, he wouldn’t get any playing time. Some cheerleaders’ parents also complained to Magistro, saying that their daughters had felt uncomfortable at a pre-game team dinner when Borden sponsored a prayer.

           Magistro believed that it was her duty to ensure that all students are welcome to play on school teams and participate in school events, and that none feel pressured to pray if they don’t want to. She believed that no student should have to choose between his or her religious beliefs and full-fledged membership in the school community. Magistro also realized that Borden was violating the Establishment Clause, and that as superintendent, she had a legal duty to stop him.

            So Magistro did what any responsible superintendent would do: She issued a policy confirming that students have the right to pray voluntarily, where and when they please, but stating that teachers, coaches, and other school employees may not “encourage, lead, initiate, mandate, or otherwise coerce, directly or indirectly, student prayer at any time in any school-sponsored setting,” nor may they participate in it.

            When Borden received the policy, he initially resigned his position, refusing to coach if he couldn’t continue having team prayer. But then he rescinded his resignation so that he could sue the school district.

A federal appeals court has unanimously ruled that a New Jersey high school football coach cannot participate in pre-game prayer activities with his players.

A three-judge panel of the 3rd U.S. Circuit Court of Appeals today held that Marcus A. Borden, football coach at East Brunswick High School, does not have a free speech right to participate in pre-game prayer activities with his players. Borden, the team’s coach since 1983, was told by high school and district officials in 2005 to stop participating in religious activities with his players. In fall 2005, East Brunswick School District Superintendent Jo Ann Magistro received complaints from parents and players regarding Borden’s pre-game prayer activities, which included leading students in prayer at pre-game dinners.

The high school officials subsequently asked Borden to stop participating in religious activities with his players. According to the 3rd Circuit, at a team dinner following the school officials’ requests, Borden continued involving himself in team prayer and allegedly told players who did not want to participate that they could wait in the restroom until prayer was over. Later Borden resigned his position, then withdrew it, and sued the school district, arguing that its policy against his participation in prayer with his players violated his free speech rights.

A U.S. District Judge agreed with Borden, ruling that the school’s ban on the coach’s involvement, including taking a knee during team prayer, was too vague. Citing federal court precedent, the 3rd Circuit reversed the district judge’s ruling and found that Borden’s involvement in prayer with his players did subvert the First Amendment principle of the separation of church and state. In Borden’s case, the panel wrote in Borden v. School District of the Township of East Brunswick, that the “conclusion we reach today is clear because he organized, participated in, and led prayer activities with his team on numerous occasions for twenty-three years.”  

“Thus,” the court continued, “a reasonable observer would conclude that he is continuing to endorse religion when he bows his head during the pre-meal grace and takes a knee with his team in the locker room while they pray.”

Check back later this week for a guest blog post from Richard Katskee, assistant legal director at Americans United for Separation of Church and State, who argued before the 3rd Circuit that the school district was on solid ground in ordering Borden to stop leading or participating in religious activities with his players.

Papers written for "The Religion Clauses in the 21st Century" Symposium are now available. In this blogpost, Naomi Cahn, Professor of Law at the George Washington School of Law, and June Carbone, Professor of Law at the University of Kansas-Missouri School of Law, introduce their paper, "Deep Purple: Religious Shades of Family Law."

Abstinence education in contemporary America represents a crisis in cultural values. Beyond the legal issues of whether parents’ religious views can appropriately foreclose their children’s life choices, abstinence education shows the diverging moral and family law systems underlying contemporary politics.

In our recently released paper, we explore the effect of religion on the politics and jurisprudence of abstinence education in the context of the contemporary culture war between red and blue state values.

The U.S. Supreme Court announced March 31 that it will hear a Utah dispute over a religious group’s request for a display of its religious messages, called “Seven Aphorisms,” in a city park alongside a Ten Commandments monument. The Supreme Court granted cert. for a review of the 10th U.S. Circuit Court of Appeals’ decision, Pleasant Grove City v. Summum, in favor of the Salt Lake City-based religious group.

The Second Circuit formally adopted the “ministerial exception” to Title VII, holding that civil rights laws cannot govern church employment relationships with ministers without violating the free exercise clause of the First Amendment. The court unanimously dismissed a lawsuit brought by an African-American Catholic priest against his Bishop and Diocese claiming that canon law had been misapplied for racially motivated reasons.

Papers written for "The Religion Clauses in the 21st Century" Symposium are now available. In this blogpost, Daniel Conkle, Professor of Law at Indiana University School of Law--Bloomington, introduces his paper, "The Establishment Clause and Religious Expression in Governmental Settings: Four Variables in Search of a Standard."

In his controversial but controlling opinion in Van Orden v. Perry, Justice Breyer rejected an Establishment Clause challenge to a Ten Commandments monument on the grounds of the Texas State Capital. Breyer argued that existing Establishment Clause formulations, including the Lemon and endorsement tests, were inadequate to resolve the case, so he relied instead on “legal judgment,” an approach informed by doctrinal and policy considerations but not controlled by any formal test.

In this Essay, I suggest that Justice Breyer may have been right in Van Orden–if not in his result, then at least in approaching the question as he did. More generally, I suggest that the search for a clear-cut doctrinal test or rule for religious expression in governmental settings, complete with yes-or-no check-off points, may be a mistaken or futile venture. There simply are too many constitutional values at work, and too many relevant variables.

Papers written for "The Religion Clauses in the 21st Century" Symposium are now available. In this blogpost, Eduardo M. Peñalver, Associate Professor of Law at Cornell Law School, introduces his paper, "Is public reason counterproductive?"

As I discuss in my article, the proper role of religion in public life is the subject of a decades-long debate that shows little signs of slowing down.  Proponents of excluding religious arguments from discussion of public policy matters have proceeded under the assumption that religious and deep moral disagreement constitutes a threat to social stability that must be tamed.  In contrast to this “scary story,” political theory also contains a competing “happy story,” whereby pluralism – the inclusion of religious arguments – affirmatively contributes to political stability by creating incentives for groups to moderate their demands. 

ACS and the West Virginia Law Review are pleased to announce that papers written for “The Religion Clauses in the 21st Century” symposium held at the West Virginia University College of Law are now available. Video excerpts of the panelists discussing symposium topics are also available.

Written by scholars in the law of church and state, the symposium papers reflect perspectives on issues organized according to these themes: “The Religion Clauses in Institutional Contexts,” “Government Religious Expression,” “Accommodation of Religion,” and “Religion and Politics.”

Over the next few weeks, ACSBlog will publish short introductions by the authors to a number of the articles. A list of the papers written for the symposium can be found below the fold.

by Geoffrey R. Stone, professor of law at the University of Chicago

Mitt Romney’s recent reflections on the role of religion in American politics implicitly called to mind a disturbingly distorted version of history that has become part of the conventional wisdom of American politics in recent years.

That version of history suggests that the Founders intended to create a “Christian Nation,” and that we have unfortunately drifted away from that vision of the United States. In fact, nothing could be further from the truth.

Those who promote this fiction confuse the Puritans, who intended to create a theocratic state, with the Founders, who lived 150 years later. The Founders were not Puritans, but men of the Enlightenment. They lived not in an Age of Faith, but in an Age of Reason. They viewed issues of religion through a prism of rational thought.

To be sure, there were traditional Christians among the Founders, including such men as John Jay, Patrick Henry and Samuel Adams. Most of the Founders, however, were not traditional Christians, but deists who were quite skeptical of traditional Christianity. They believed that a benevolent Supreme Being had created the universe and the laws of nature and had given man the power of reason with which to discover the meaning of those laws. They viewed religious passion as irrational and dangerously divisive, and they challenged, both publicly and privately, the dogmas of traditional Christianity.

On Tuesday, a three-judge panel in the U.S. Court of Appeals for the Seventh Circuit overturned a ban on sectarian prayer in the state House of Representatives on the grounds that plaintiffs lacked standing to bring the suit.

The district court had concluded prayers mentioning Jesus Christ or using terms such as "savior" amounted to state endorsement of a religion. According to the First Amendment Center, "of 53 opening prayers during the 2005 House session . . . at least 29 mentioned Jesus Christ."

On appeal, the majority denied standing because plaintiffs could not identify a specific legislative appropriation for the program, which the court concluded was required by the fractured 2006 U.S. Supreme Court decision Hein v. Freedom From Religion Foundation. Dissenting Judge Diane Wood, applying Flast v. Cohen, concluded that plaintiffs had standing because the injury in fact was that taxes "are being 'extracted and spent in violation of specific constitutional protections against such abuses of legislative power.'"

On Tuesday, a three-judge panel in the U.S. Court of Appeals for the Seventh Circuit overturned a ban on sectarian prayer in the state House of Representatives on the grounds that the plaintiffs lacked standing to bring the suit, in Hindrichs v. Bosma.

The District Court judge had concluded prayers mentioning Jesus Christ or using terms such as savior amounted to state endorsement of a religion; the First Amendment Center reports that "of 53 opening prayers during the 2005 House session, 41 were given by clergy identified with Christian churches and at least 29 mentioned Jesus Christ."