Religious Freedom and the Supreme Court

Introduction

1 The Impact of the U.S. Supreme Court on American Religious Freedom

§1 Understanding the Supreme Court

§2 Understanding the Protection of "Rights" and "Liberties"

2 The Historical Background to the First Amendment Religion Clauses

3 Themes and Trends in First Amendment Interpretation

§3 Originalism and Its Critics

§4 "Nonpreferentialism" and Government Fi­nancial Aid for Religion

§5 Incorporation of the Establishment Clause

§6 The "Distinctiveness" of Religion

§7 "No-Aid Separation" v. "Evenhanded Neu­trality"

§8 Use of Speech Principles in Religion Clause Jurisprudence

§9 Accommodation of Religion

§10 "Play In the Joints"

§11 "Complementary Values, Conflicting Pressures"

4 What Is Religion?

5 The Concept of Standing

§12 Flast v. Cohen

§13 Valley Forge College v. Americans United for Separa­tion of Church and State

§14 Hein v. Freedom From Religion Foundation

§15 Elk Grove Unified School District v. Michael A. Newdow

Part 2

The Free Exercise Clause

6 Basic Concepts and Development of Free Exercise Doctrine

§16 The "Belief-Action" Dichotomy (Reynolds v. United States; Davisv. Beason)

§17 Religious Liberty as Due Process Liberty (Pierce v. Soci­ety of the Sisters of the Holy Names of Jesus and Mary)

§18 Conscien­tious Objector Cases (United States v. Schwimmer; Girouard v. United States; Hamilton v. Regents of the University of California)

§19 Em­bracing Free Exercise as a Right (Cantwell v. State of Connecticut; West Virginia State Board of Education v. Barnette; Prince v. Massachusetts)

§20 Early Free Exercise on Government Property (Davis v. Commonwealth of Massachusetts; Murdock v. Pennsylvania; Heffron v. International Society for Krishna Consciousness; International Society for Krishna Consciousness v. Lee)

7 Rise and Fall of Free Exercise Exemptions: From Sherbert to Smith

§21 The Rise of Judically Mandated Free Exercise Exemptions (Sherbert v. Verner; Wisconsin v. Yoder)

§22 Refining the Sherbert Test (United States v. Lee; Thomas v. Review Board; Hobbie v. Unemployment Appeals Commission of Florida; Frazee v. Illinois Employment Security Department)

§23 Free Exer­cise in Transition (Bowen v. Roy; Lyng v. Northwest Indian Cemetery Protective Association; Goldman v. Weinberger; O'Lone v. Estate of Shabazz; Hernandez v. Commissioner of Internal Revenue; Jimmy Swaggart Ministries v. Board of Equalization)

8 Rise and Fall of Free Exercise Exemptions: Smith and Beyond

§24 The Fall of Judicially Mandated Free Exercise Exemptions (Employment Division v. Smith)

§25 The Free Exercise Clause Beyond Smith (Church of Lukumi Babalu Aye v. City of Hialeah)

§26 Congress Stands in the Gap: RFRA and RLUIPA (City of Boerne v. Archbishop Flores; Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal; Cutter v. Wilkinson)

9 Churches and the Civil Justice System

§27 Church Autonomy/Schisms (Watson v. Jones; Gonzalez v. Roman Catholic Archbishop of Manila; Kedroff v. St. Nicholas Cathedral; Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church)

§28 Religious Torts (United States v. Ballard; Nally v. Grace Commu­nity Church; Molko v. Holy Spirit Association; Moses v. Diocese of Colorado)

10 Religious Organizations as Employers

§29 Government Oversight of Employment Practices (National Labor Relations Board v. The Catholic Bishop of Chicago; Tony and Susan Alamo Foundation v. Secretary of Labor)

§30 Employment Actions by Religious Organizations (Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos; Equal Employment Opportunity Commission v. Pacific Press Publishing Association; Gellington v. Christian Methodist Episcopal Church, Inc.; Bollard v. California Diocese of the Society of Jesus)

Part 3

The Establishment Clause I

11 Government Funding of Religious Schools: The Rise and Application of the "No-Aid" Principle

§31 The Emergence of Nonsectarian Public Education and the No-Funding Principle; Developing Principles (Everson v. Board of Education of Ewing Township)

§32 The High Point of "No-Aid" (Lemon v. Kurtzman; Com­mittee for Public Education and Religious Liberty v. Nyquist; Committee for Public Education and Religious Liberty v. Regan; School District of Grand Rapids v. Ball)

12 Government Funding of Religious Schools: The Rise of Even-handed Neutrality and Private Choice

§33 Mueller v. Allen; Zobrest v. Catalina Foothills School District; Agostini v. Felton; Mitchell v. Helms

§34 Zelman v. Simmons-Harris; Locke v. Davey

13 Government Aid to Higher Education

§35 Tilton v. Richardson; Hunt v. McNair

§36 Roemer v. Board of Public Works of Maryland

14 Religious Organizations and Government-Funded Social Services

§37 Bradfield v. Roberts; Bowen v. Kendrick

§38 "Charitable Choice" and the "Faith-Based Initiative" (Charitable Choice; The Bush Administration's Faith-Based Initiative [Executive Order 13279]; Freedom from Religion Foundation v. McCallum)

15 Government Funds and Religious Institutions: A Look toward the Future

Part 4

The Establishment Clause II

16 Religious Expression and Public Schools: Background, Released-Time Programs and the 1960's School-Prayer Decisions

§39 Historical Background: The Common School Movement

§40 "Released-Time" Programs (McCollum v. Board of Education; Zorach v. Clauson)

§41 State-sponsored Prayer and Bible Reading: The 1960s Cases (Engel v. Vitale; School District of Abington Township v. Schempp)

17 Religious Expression in Public Schools: Moments of Silence and Post-1960s School-Prayer Cases

§42 Wallace v. Jaffree

§43 Lee v. Weisman

§44 Santa Fe Independent School District v. Doe

18 Religious Expression in Public Schools: Religion and the Curriculum and Presidential Guidelines on Religion and Public Schools

§45 Religion and the Public School Curriculum (Religious Objections to Cur­riculum: Evolution and Religion [Epperson v. Arkansas; Edwards v. Aguillard]

§46 "Opt outs" [Mozert v. Hawkins County Board of Education]

§47 School-sponsored Religious Displays

§48 Teaching About Religion in an Academic, Rather than a Devotional, Manner)

§49 Presidential Guidelines on Religious Expression in Public Elementary and Secondary Schools ("Guidance on Consti­tutionally Protected Prayer in Public Elementary and Secondary Schools")

19 Equal Access

§50 Widmar v. Vincent

§51 Board of Education v. Mergens

§52 Lamb's Cha­pel v. Center Moriches Union Free School District

§53 Good News Club v. Milford Central School

§54 Other Religious Expression/Access Issues (Rosen­berger v. Rector and Visitors of the University of Virginia)

20 Religious Symbols on Government Property

§55 Lynch v. Donnelly

§56 County of Allegheny v. American Civil Liberties Union

§57 Capitol Square Review v. Pinette

§58 McCreary County v. Ameri­can Civil Liberties Union

§59 Van Orden v. Perry

21 Government Acknowledgements of Religion, Government Chaplains, Religion and Politics, and Religion in the Governmental Workplace

§60 Governmental Acknowledgements of Religion and Government Chaplains (Marsh v. Chambers; Katcoff v. Marsh; Delores Rudd v. The Honorable Robert D. Ray)

§61 Religion and Politics (McDaniel v. Paty; Branch Ministries v. Rossotti)

§62 Religion in the Federal Workplace ("Guidelines on Religious Ex­ercise and Religious Expression in the Federal Workplace")

22 Religious Preferences/Delegations

§63 Government Preferences of Religion (Torcaso v. Watkins; Larson v. Valente)

§64 Government Delegations of Authority to Religion (Larkin v. Grendel's Den; Board of Education of Kiryas Joel Village School District v. Grumet)

23 Legislative Accommodation of Religious Exercise

§65 Walz v. Tax Commission of the City of New York

§66 Trans World Airlines v. Hardison

§67 Estate of Thornton v. Caldor

§68 Corporation of Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos

§69 Texas Monthly v. Bullock

§70 Board of Education of Kiryas Joel Village School Dis­trict v. Grumet

§71 Cutter v. Wilkinson

Appendices

A Bill Establishing a Provision for Teachers of the Christian Religion

A Bill for Establishing Religious Freedom

Memorial and Remonstrance against Religious Assessments

Selected Bibliography

Notes