Constitutional Law II Outline - Professor Wallace - Campbell Law - Part 11

c. Endorsement Test: Been stated two ways:

1. Government endorses religion by sending message that certain religion is favored or preferred
2. Government endorses religion when it sends message to non-adherents that they are political outsiders
3. Issue: “Endorsement is in the eye of the observer” – Wallace
   1. Supposed to be “reasonable” observer standard
4. This is where context is most important!
   1. Ten commandment cases- still context based
      1. When displayed on state capital among all sorts of other plaques and shit → fine, secular purpose
   2. Lynch: Gov. displayed nativity scene w/ religious & secular elements.
      1. Reindeer Rule: Wasn’t a violation of Establishment clause because there were non-religious elements to mitigate religious message.
         1. Look for context!!!! Is gov. action one of endorsement or diverse celebration of religion?
            1. Allegheny county: Menorah with no reindeer etc. but a bunch of American flags → constitutional b/c promoting diversity (was under endorsement test though)
            2. Secular context can’t be superficial though

d. Denominationally Neutral? Government can’t favor one religion over another

1. Not based on whether law is secular or not, just can’t favor one religion over another
2. Kiryas Joel: Hasidic Jews got their own school district and school since their children were being bullied.
   1. Court held as unconstitutional because singled out particular religion for favorable treatment. Accommodation flowed to only 1 religion

e. History and Tradition? Legislative prayer to start sessions → constitutional in Town of Greece

1. American Legion cross at intersection had historic background of honoring war veterans → context of history made this not about promoting religion
2. Three ways to avoid constitutional dilemmas:
   1. direct prayer towards god in general, or if addressed at specific deity → prayers should be offered by diverse set of people
      1. Town of Greece was mainly offered by Christians but the Board had been reaching out trying to get anyone to come → that’s fine
   2. Prayer should not be given out to favor one religion over another
   3. Should be non-participatory

a. Apply Lemon test or endorsement tests as modified by Agostini

• Two guiding principles:

b. 1) Neutrality (equal inclusion): Is gov. aid being applied in neutral fashion? Do benefits apply to religious and non-religious groups?

1. Zobrest: Hearing impaired student went to religious school. State program allowed hearing assistant to go with him. Court upheld program bc benefits applied to all students alike.
2. Everson: NJ statute allowed towns to compensate parents of kids for transportation to schools; including religious schools. Court upheld law bc applied across the board to all students.

c. 2) Individual Choice (no state action): Do funds reach religious groups only as result of independent private choices of recipients?

1. Zobrest: Deaf student went to religious school. State program allowed hearing assistant to go with him. Court upheld program bc decision on where to attend school was made by student—not gov.

d. Also consider: Does funding require close monitoring to ensure no incorporation of religion? Entanglement

a. Is accommodation required by the Free Exercise clause?

1. Smith tells up probably not if generally applicable neutral law

b. Q: Does Accommodation Impermissibly Advance or Endorse Religion?

1. Eliminate Obstacle: Does accommodation alleviate obstacle to religious exercise, or does it create incentive or inducement for making that choice?
   1. Kiryas Joel: Hasidic Jews got their own school district and school since their children were being bullied. → Court held as unconstitutional because incentivized people to become Hasidic Jew
   2. Ex- Dry county with wine exception for catholic church? → would not be incentive to join religion
2. Burden on others: Does accommodation impose substantial burden on non-beneficiaries?
   1. TX Monthly: Tax exemption for religious publications. Struck down because would require non-religious organizations to pay more in taxes.
      1. EX) Gov. closing mountain for Native American religious ceremony would be too big of a burden on everyone else
3. . Denominational neutrality : is accommodation provided to all similarly situated religions without favoritism or discrimination?
   1. Kiryas Jewish case re
   2. If available to all religions but only providing to one? → fine

a. Rule: If a court can resolve dispute by applying neutral principles of law (ie- K law or property) then it will decide the issue.

1. If not, court will defer to religious body to avoid “doctrinal entanglement.”
2. Does this dispute involve issues of religious doctrine or policy?
   1. Yes → Defer to religious body
   2. No → Apply neutral principles of law to resolve dispute