RELIGIOUS FREEDOM AND THE SUPREME COURT

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1 RELIGIOUS FREEDOM AND THE SUPREME COURT RONALD B. FLOWERS JOHN F. WEATHERLY EMERITUS PROFESSOR OF RELIGION TEXAS CHRISTIAN UNIVERSITY MELISSA ROGERS VISITING PROFESSOR OF RELIGION AND PUBLIC POLICY AND DIRECTOR, CENTER FOR RELIGION AND PUBLIC AFFAIRS WAKE FOREST UNIVERSITY DIVINITY SCHOOL STEVEN K. GREEN PROFESSOR OF LAW AND DIRECTOR, CENTER FOR RELIGION, LAW AND DEMOCRACY WILLAMETTE UNIVERSITY BAYLOR UNIVERSITY PRESS

2 TABLE OF CONTENTS XIX PARTI INTRODUCTION 1 The Impact of the U.S. Supreme Court on American Religious Freedom 1 Understanding the Supreme Court; Understanding the Protection of "Rights" and "Liberties" 2 The Historical Background to the First Amendment Religion Clauses 11 3 Themes and Trends in First Amendment Interpretation 29 Originalism and Its Critics; "Nonpreferentialism" and Government Financial Aid for Religion; Incorporation of the Establishment Clause; The "Distinctiveness" of Religion; "No-Aid Separation" v. "Evenhanded Neutrality"; Use of Speech Principles in Religion Clause Jurisprudence; Accommodation of Religion; "Play in the Joints"; "Complementary Values, Conflicting Pressures" 4 What Is Religion? 47 5 The Concept of Standing 65 Flast v. Cohen; Valley Forge College v. Americans United for Separation of Church and State; Hein v. Freedom From Religion Foundation; Elk Grove Unified School District v. Michael A. Newdow PART II THE FREE EXERCISE CLAUSE 6 Basic Concepts and Development of Free Exercise Doctrine 95 The "Belief Action" Dichotomy (Reynolds v. United States; Davis v. Beason); Religious Liberty as Due Process Liberty (Pierce v. Society of the Sisters of the

3 Vlll Table of Contents Holy Names of Jesus and Mary); Conscientious Objector Cases (United States v. Schwimmer; United States v. Macintosh; Girouardv. United States; Hamilton v. Regents of the University of California); Embracing Free Exercise as a Right (Cantwell v. State of Connecticut; West Virginia State Board of Education v. Barnette; Prince v. Massachusetts); Early Free Exercise on Government Property (Davis v. Commonwealth of Massachusetts; Murdoch v. Pennsylvania; Hejfron 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 145 The Rise of Judicially Mandated Free Exercise Exemptions (Sherbert v. Verner; Wisconsin v. Yoder); Refining the Sherbert Test (United States v. Lee; Thomas v. Review Board; Hobble v. Unemployment Appeals Commission of Florida; Frazee v. Illinois Employment Security Department); 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 209 The Fall of Judicially Mandated Free Exercise Exemptions (Employment Division v. Smith); The Free Exercise Clause beyond Smith (Church oflukumi Babalu Aye v. City ofhialeah); Congress Stands in the Gap: RFRA and RLUIPA (City ofboerne v. Archbishop Flores; Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal; Cutter v. Wilkinson) 9 Churches and the Civil Justice System 295 Church Autonomy/Schisms (Watson v. Jones; Gonzalez v. Roman Catholic Archbishop of Manila; Kedroff v. St. Nicholas Cathedral; Presbyterian Church v. Hull Memorial Presbyterian Church; Serbian Orthodox Diocese v. Milivojevich; Jones v. Wolf); Religious Torts (United States v. Ballard; Nally v. Grace Community Church; David Molko v. Holy Spirit Association; Mary E. Moses v. Diocese of Colorado) 10 Religious Organizations as Employers 343 Government Oversight of Employment Practices (National Labor Relations Board v. The Catholic Bishop of Chicago; Tony and Susan Alamo Foundation v. Secretary of Labor); 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. Society of Jesus)

4 Table of Contents ix PART III THE ESTABLISHMENT CLAUSE I 11 Government Funding of Religious Schools: The Rise and Application of the "No-Aid" Principle 385 Developing Principles (Everson v. Board of Education of Ewing Township); 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) Yl Government Funding of Religious Schools: The Rise of Even-Handed Neutrality and Private Choice 441 Mueller v. Allen; Witters v. Washington Department of Services for the Blind; Zobrest v. Catalina Foothills School District; Agostini v. Felton; Mitchell v. Helms; Zelman v. Simmons-Harris; Locke v. Davey 13 Government Aid to Higher Education 507 Tilton v. Richardson; Hunt v. McNair; Roemer v. Board of Public Works of Maryland 14 Religious Organizations and Government-funded Social Services 527 Bradfield v. Roberts; Bowen v. Kendrick; "Charitable Choice"and the "Faithbased Initiative" (Charitable Choice; The Bush Administrations Faith-based Initiative [Executive Order 13279]; Freedom From Religion Foundation v. McCallum) 15 Government Funds and Religious Institutions: A Look toward the Future 565 PART IV THE ESTABLISHMENT CLAUSE II 16 Religious Expression and Public Schools: Background, Released-Time Programs, and the 1960s School-Prayer Decisions 575 Historical Background; "Released-Time" Programs (McCollum v. Board of Education; Zorach v. Clauson); 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 64 5 Wallace v. Jaffree; Lee v. Weisman; Santa Fe Independent School District v. Doe

5 Table of Contents 18 Religion and the Public Schools: Religion and the Curriculum and Presidential Guidelines on Religion and Public Schools 717 Religion and the Public School Curriculum (Epperson v. Arkansas; Edwards v. Aguillard); "Opt outs" (Mozert v. Hawkins County Board of Education); School-sponsored Religious Displays; Teaching about Religion in an Academic, Rather Than a Devotional, Manner; 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 765 Widmar v. Vincent; Board of Education v. Mergens; Lamb's Chapel v. Center Moriches Union Free School District; Good News Club v. Milford Central School; Other Religious Expression/Access Issues (Rosenberger v. Rector and Visitors of the University of Virginia) 20 Religious Symbols on Government Property 853 Lynch v. Donnelly; County of Allegheny v. American Civil Liberties Union; Capitol Square Review v. Pinette; McCreary County v. American Civil Liberties Union; Van Orden v. Perry 21 Government Acknowledgments of Religion, Government Chaplains, Religion and Politics, and Religion in the Governmental Workplace 967 Governmental Acknowledgments of Religion and Government Chaplains (Marsh v. Chambers; Katcoffv. Marsh; Rudd v. Ray); Religion and Politics (McDaniel v. Paty; Branch Ministries v. Rossotti); Religion in the Federal Workplace ("Guidelines on Religious Exercise and Religious Expression in the Federal Workplace") 22 Religious Preferences/Delegations 1031 Government Preferences of Religion (Torcaso p. Watkins; Larson v. Valente); Government Delegations of Authority to Religion (Larkin v. Grendels Den; Kiryasjoel Village School District v. Grumet) 23 Legislative Accommodation of Religious Exercise 1067 McGowan v. Maryland; Walz v. Tax Commission of the City of New York; Trans World Airlines v. Hardison; Ansonia Board of Education v. Philbrook; Estate of Thornton v. Caldor; Corporation of Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos; Texas Monthly v. Bullock; Kiryasjoel Village School District v. Grumet; Cutter v. Wilkinson

6 Table of Contents APPENDICES A Bill Establishing a Provision for Teachers of the Christian Religion 1129 A Bill for Establishing Religious Freedom 1131 Memorial and Remonstrance against Religious Assessments 1133 Supreme Court Opinions by Justice 1139 Supreme Court Church-State Cases 1149 Notes 1167 Selected Bibliography 1187 Index 1197

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