of the Judicial Branch: Establishment Clause Cases
Square Review and Advisory Board v. Pinette (1994), the
Supreme Court ruled in favor of the Ku Klux Klan. It concluded that
the square was a “public forum” in which the government cannot discriminate
on the basis of the content of speech without a compelling reason
for doing so. While violation of the Establishment Clause could
provide such a reason, the Court found that allowing the Klan’s
cross in the square did not violate the establishment clause. Because
the square was known as a public forum, the opinions and viewpoints
expressed there did not represent the views of the government, but
of the individuals wh o expressed their views. Thus, the Klan’s
unattended cross would not suggest any endorsement or promotion
of religion by the state of Ohio.
The California State Supreme Court ruled in Fox v.
City of Los Angeles that the display of a lit cross at City
Hall was, in fact, unconstitutional and violated the state’s religious
“preference clause.” The court found that the city of Los Angeles
had identified itself with the central symbol of one religion. The
duty of the court was to protect those of other faiths or no faith
from coercion toward conformity that might result by this formal
endorsement of one religion.
v. American Civil Liberties Union, Greater Pittsburgh Chapter
(1989) the Court found the city’s holiday display of a Christian
nativity scene to be unconstitutional. The words on the banner “endorse
a patently Christian message. … Nothing in the nativity scene setting
detracts from that message.” However, in permitting the display
of the menorah outside the City County building by a Christmas tree
and a sign saluting liberty, the Court found that the city and county
sought merely to “celebrate the season,” and to acknowledge the
historical background and the religious, as well as secular, nature
of the Chanukah and Christmas holidays. As the Court stated, “This
interest falls well within the tradition of governmental accommodation
and acknowledgment of religion that has marked our history from
Teachers may wish to compare the decision in Allegheny
v. ACLU to Lynch v. Donnelly (1984) that also involved
a nativity scene. The city of Pawtucket, R.I., had for more than
40 years erected a Christmas display in the city’s shopping district.
The display included a Santa Claus house, a Christmas tree, a banner
reading “Season’s Greetings,” and a nativity scene. The Court voted
5-4 that the nativity scene did not violate the Establishment Clause.
The display as a whole depicted the historical origins of the Holiday
and had “legitimate secular purposes.”
The Supreme Court found in Rosenberger
et. al. v. Rector and Visitors of the University of Virginia et.
al. (1995)] that the university was required to provide
funds for the publication of the magazine “Wide Awake: A Christian
perspective at the University of Virginia,” because the school had
created an open forum in establishing the Student Activities Fund.
As a recognized student organization, there is no implication that
the university supports the positions of the group, and the monies
were paid to suppliers (printers), not to a religious organization.
The Court rejected the establishment clause argument to support
the student group’s free speech rights.
Silent prayer sponsored or endorsed by
the public school is unconstitutional. The Supreme Court has held
in many cases that mandatory or state-sponsored prayer in school
is a violation of the Establishment Clause. For example, in Santa
Fe Independent School District v. Doe, Jane, et al., the
Court decided that the state school district’s policy permitting
student-led, student-initiated prayer at football games violated
the Establishment Class of the First Amendment.
The constitutionality of the moment of silence is uncertain. It
is clear that teachers may instruct students to maintain any quiet
activity during this time. Teachers should not say anything about
bowing heads or in any way encourage prayer or other religious exercise
during the period of silence.
This does not mean that students cannot pray silently to themselves
while at school. Generally, individual students are free to pray,
read their Bibles, express religious viewpoints, and even invite
others to join their particular religious group as long as they
are not disruptive of the school or disrespectful of the rights
of other students.