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"Congress shall make no law respecting an establishment of religion…." This clause has come a long way in how our government settles with cases concerning religion. The Establishment Clause generally means that government CANNOT authorize a church, pass laws that aid or favor one religion over another, pass laws that favor religious belief over non belief, and force a person to profess a belief. In all, government must stay neutral when it comes to religion and cannot be entangled with any religion. "…..or prohibit the free exercise of thereof." This is the second religion clause. It is the Free Exercise Clause. This clause protects the rights of individuals to worship and believe as they wish. It also means that people cannot be compelled by government to act opposite to their religious beliefs, unless the belief violates a valid law. Religion has brought about a lot of controversy since the day it was first incorporated into the Constitution. The position was clear that the government would be separate from religion, the unclear part was how to paraphrase the clauses. The House and the Senate both had different language presented. The debates in Congress conformed little assistance in how to interpret the religious clauses. The intent of Madison and Jefferson were fairly clear. What wasn't clear was if the others in Congress voted on the language and those in States who voted to ratify on the subject. Before moving on to the development of these religious clauses, it would be best to have a look at the tests developed by which religion cases are settled by the court. While later cases rely on a series of rather well outlined tests, the language of earlier cases "may have contained too sweeping utterances on aspects of these clauses that seemed clear in relation to the particular cased but have limited meaning as general principles." It is also important to recall that the "purpose of the religion clauses was to state an objective, not to write a statue." The concept of neutrality itself is a "coat of many colors," and three standards have emerged as tests of the Establishment Clause validity. The first two standards were part of the same composition. "The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement of inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be secular legislative purpose and a primary effect that neither advances nor inhibits religion." The third test is question to whether the governmental programs results in "an excessive government entanglement with religion. The questions are whether the involvement is excessive, and whether it is a continuing one calling for official and continuing surveillance leading to an impermissible degree of entanglement." The three of these tests were put together and restated in Justice Burger's opinion for the Lemon v. Kurtzman case and are referred to as the Lemon tests. At one time the tests had been used frequently by all of the Justices, they had been difficult to apply and have recently been under attack by some Justices. In conclusion, with increasing frequency they haven't been applied at all by the Court. While the usage of the tests have been uncertain the Lemon tests nonetheless have served for twenty years as the standard measure of Establishment Clause validity and explains most of the Court's decisions in the area. At the end of the Court's 1991-92 term there still wasn't a consensus on substitution should be used to replace the Lemon test. Dependence on "coercion" for that purpose would eliminate a standard distinction between establishment cases and free exercise cases and makes the Establishment Clause an immensely duplicate of the Free Exercise Clause. Justice O'Conner had suggested that it isn't important to solve all the establishment cases from one test, instead has called forth that different circumstances require different approaches. For example, the Justice pointed at that cases involving government "speech" on religious topics be judged by an endorsement test that would repeal government actions only if an observer would distinguish the action as an endorsement or disapproval of religious belief. When the topic of allowing local authorities to provide free transportation for children attending parochial schools reached the Court, it adopted very restrictive language. The Establishment clause projects that the Federal Government cannot participate in the affairs of any religious organizations or groups and vice versa. But the majority sustained the provision of transportation. They recognized that it "approaches the verge" of the State's constitutional power, still, Justice Black thought, the transportation was a form of "public welfare legislation" which was being extended to "all its citizens without regard to their religious belief." There is even al possibility that some of the children might not be sent to the church schools if the parents were obliged to pay for the transportation. Transportation benefited the child, just as police protection at crossings, fir protection, connections for sewage disposal, public highway and side walks. For this came about the child benefit theory. In 1968 the Court relied on the child benefit theory to sustain state loans of textbooks to parochial school students. The Court determined that the purpose of the loans was to further the education of a young person. "The law merely makes available to all children the benefits of a general program to lent school books free of charge. Books are furnished at the request of the pupil and the ownership remains, at least technically, in the State. Thus funds or books are furnished to parochial schools, and the financial benefit is to parents and children, not to schools. Perhaps free books make it more likely that some children choose to attend a sectarian school, but that was true of the state-paid bus fares in Everson and does not alone demonstrate unconstitutional degree of support for a religious institution." In 1962 the case of Engel v. Vitale was brought forth in front of the Supreme Court. The initial case arose when the Board of Regents of New York State composed a "nondenominational" prayer that it recommended local school boards adopt. The parents of some children objected and took the case to the courts. The Supreme Court reviewed the case and declared it unconstitutional. It violated the Establishment Clause because government officials for a governmental program to further religious beliefs composed the prayer. For this reason the Regent's prayer breaches the constitutional wall of separation between Church and State. Justice Black declared that the First Amendment means "that in this country it is no part of the business of government to compose official payers for any group of the American people to recite as part of a religious program carried on by government." Following the prayer decision came two cases in which parents and their school age children challenged the effectiveness under the Establishment Clause of requirements that each school day begin with readings of selections from the Bible. In the Abington Township v. Schempp students were required to read ten verses from the Bible. After completing these readings the school authorities required all Abington Township students to recite the Lord's Prayer. The student could be excused from doing so by a written note from a parent. In the Murray v. Curlett case a Baltimore statute required Bible reading or the recitation the Lord's Prayer at open exercises in public schools. Murray and his mother, professed atheists, challenged the prayer requirement. The Court found that in both these cases there was a violation on both the Establishment Clause and Free Exercise Clause of the First Amendment since the readings and recitations were religious ceremonies and were "intended by the State to be so." Furthermore Justice Clark argued, the endowment of a parent to excuse a child from these ceremonies by a written note was irrelevant since it did not prevent the school's actions from infraction the Establishment Clause. The Wallace v. Jaffree case concerned an Alabama law-authorizing teacher to conduct regular religious prayer services and activities in school classrooms during the school day. Three of the Jaffree children attended public schools in Mobile. The question came up that did Alabama's law violate the First Amendment's Establishment Clause? The Court determined that, yes the law in fact breach the First Amendment's Establishment Clause. The Court determined the constitutionality of Alabama's prayer and meditation statue by applying the secular purpose test, which asked it the state's actual purpose was to endorse or disapprove of religion. The Court held that Alabama's passage of the prayer and meditation statute was not only a deflection from the state's duty to maintain absolute neutrality toward religion, but was and supporting signature of religion. As such, the statute clearly lacked any secular purpose as it sought to establish religion in public schools. Other cases that arose were not in violation of the Establishment Clause but in violation of the Free Exercise Clause. In these "flag salute" cases, the Court had initially ruled that the children of Jehovah's Witnesses could not be excused from saluting the American flag on religious grounds. But in 1943 only three years later a new case arose where the seven children of Barnett, also a member of Jehovah's Witnesses, were expelled from the school for not saluting the flag. Since the Court's decision rested upon the "the free speech clause" it protects anyone who refuses to salute the flag for whatever reason. There always will be a misdemeanor in how the Courts come about with a decision to a case concerning religion. There are many factors to take into consideration when passing judgement. The Courts also needs to pass a judgement, which doesn't violate either of the religious clauses in the First Amendment. This is the reason why Courts find it very necessary to rely on previous cases and pass judgement from them. In some cases this not a very wise step to take because the previous cases may be violating others of the Constitution, which were over looked. Minersville v. Gobitis, 310 U.S. 586 (1940) - Supreme Court rules that a public school may require students to salute the flag and pledge allegiance even if it violates their religious scruples. West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) - Court overturns Gobitis but is broader in its scope. No one can be forced to salute the flag or say the pledge of allegiance if it violates the individual conscience. McCollum v. Board of Education, 333 U.S. 203 (1948) - Court finds religious instruction in public schools a violation of the establishment clause and therefore unconstitutional. Zorach v. Clausen, 343 U.S. 306 (1952) - Court finds that release time from public school classes for religious instruction does not violate the establishment clause. Epperson v. Arkansas, 393 U.S. 97 (1968) - Court says the state cannot ban the teaching of evolution. Stone v. Graham, 449 U.S. 39 (1980) - Court finds posting of the Ten Commandments in schools unconstitutional. Edwards v. Aquillard, 482 U.S. 578 (1987) - Court finds state law requiring equal treatment for creationism has a religious purpose and is therefore unconstitutional. Board of Education v. Mergens, 496 U.S. 226 (1990) - The court rules that the Equal Access Act does not violate the First Amendment. Public schools that receive federal funds and maintain a "limited open forum" on school grounds after school hours cannot deny "equal access" to student groups based upon "religious, political, philosophical, or other content." Lee v. Weisman, 112 SCt. 2649 (1992) - Court finds prayer at public school graduation ceremonies violates the establishment clause and is therefore unconstitutional. Lamb's Chapel et al. v. Center Moriches Union Free School District, 508 U.S. 384 (1993) - Court says that school districts cannot deny churches access to school premises after-hours, if the district allowed the use of its building to other groups. Kiryas Joel Village School District v. Grumet, (1994) - Court states that the New York State Legislature cannot create a separate school district for a religious community. Santa Fe Independent School District v. Doe, (2000) - Court rules that student-led prayers at public school football games violate the Establishment Clause of the First Amendment. Bibliography: Word Count: 2121
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