Decisions of the Judicial Branch: Establishment Clause Cases

Situation 1
In Capitol 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.

Situation 2
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.

Situation 3
In Allegheny 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 the beginning.”

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.”

Situation 4
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.

Situation 5
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.


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