As the Supreme Court struggles to decide just how religious prayers at public meetings should be in Greece v. Galloway, let’s take a look back at some of the landmark free exercise and Establishment Clause decisions that have shaped America’s religious landscape.

1. Religious freedom does not trump federal law

In Reynolds v. U.S. (1879), the Supreme Court of the United States (hereafter SCOTUS) ruled that Mormons could not violate a federal anti-bigamy law in the name of religious belief. People can believe whatever they want, but can’t always take action on those beliefs. Citing a slippery slope scenario, Chief Justice Waite hypothesized that permitting human sacrifice in the name of religion “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” None of that!

2. The Establishment Clause applies to states, too

In Everson v. Board of Education (1947), SCOTUS made clear that the words “Congress shall make no law respecting an establishment of religion” in the First Amendment apply to state as well as federal law. The justices reiterated the importance of Thomas Jefferson’s notion of a “wall of separation between church and state,” but ruled that a New Jersey policy allowing taxpayer money to fund public transportation to religious schools did not violate the Constitution.

3. School-led prayer in public schools is a big no-no

Let me count the ways the Supremes have decided this…

Madalyn Murray O'Hair in 1983

Madalyn Murray O’Hair in 1983 Photo courtesy Alan Light via Wikimedia Commons

In Engel v. Vitale (1962), SCOTUS decided that government-directed prayer in public schools violates the Establishment Clause, even if the prayer is voluntary and denominationally ambiguous. In Wallace v. Jaffree (1985), SCOTUS ruled that the same logic applies to meditation or silent prayer. In Lee v. Weisman (1992), they ruled that clergy can not lead prayers at public high school graduation ceremonies. In Abington School District v. Schempp and Murray v. Curlett (1963), they ruled that school-sponsored Bible readings and recitations of the Lord’s Prayer are unconstitutional (in case you’re wondering, that’s Murray as in American Atheists founder Madalyn Murray O’Hair and her son William J. Murray III). In Santa Fe Independent School Dist. v. Doe (2000), SCOTUS ruled that student-led prayer at football games violates the Establishment Clause. Notice a trend?

4. Teaching evolution is fine, creationism and intelligent design not so much

Teacher John Scopes who was found guilty of teaching human evolution in a state-funded Tennessee school in 1925.

Teacher John Scopes who was found guilty of teaching human evolution in a state-funded Tennessee school in 1925. Photo by Watson Davis courtesy Smithsonian Institution via Wikimedia Commons

In the 1925 media circus that was the Scopes “Monkey Trial,” a Tennessee teacher was found guilty of educating students about human evolution in a public school. In Epperson v. Arkansas (1968), SCOTUS ruled that teaching evolution is in fact not a crime and prohibited states from requiring “that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma.” After some public schools started teaching creationism alongside evolution, SCOTUS ruled in Edwards v. Aguillard (1987) that teaching creationism in any public school context is unconstitutional. The U.S. District Court for the Middle District of Pennsylvania said much the same about intelligent design in Kitzmiller v. Dover Area School District (2005).

5. Parents can (sometimes) send kids to religious schools on the government’s dime, or opt them out of public schools entirely

In Zelman v. Simmons-Harris (2002), SCOTUS ruled that an Ohio school voucher program that allowed students to enroll in religiously affiliated schools did not violate the Establishment Clause because the program had a “valid secular purpose,” was religiously neutral, included adequate nonreligious options, covered a broad class of beneficiaries and benefited parents rather than the schools directly. Homeschooling has long been legal throughout the U.S. In Wisconsin v. Yoder (1972), SCOTUS ruled that parents can remove their children from public schools for “legitimate” religious reasons, which apparently include being an Amish teen.

6. Students can’t be forced to say the Pledge of Allegiance or punished for abstaining

In Minersville School District v. Gobitis (1940), SCOTUS ruled that students could be compelled to recite the Pledge of Allegiance even if doing so violates their religious beliefs, as is the case for Jehovah’s Witnesses who consider the practice a form of impermissible idolatry. This decision was overruled three years later in West Virginia State Board of Education v. Barnette (1943). Massachusetts’ Supreme Court is currently considering whether reciting the Pledge and its reference to “one nation under God” should be banned altogether.

7. All laws must be religiously neutral, have a secular purpose and maintain church-state separation

In Lemon v. Kurtzman (1971), SCOTUS decided that laws must have a significant secular purpose, must not primarily advance or inhibit religion, and must not foster excessive government entanglement with religion. Thus was born the Lemon Test, which I’m relieved to learn does not refer to decisionmaking based on whether the thought of something makes Supreme Court justices wince like they’re sucking on a lemon. SCOTUS has ruled that displaying the Ten Commandments near Texas’s State Capitol passes this test whereas doing so in public classrooms does not.

8. Restaurants with holy neighbors have the right to liquor up patrons

Larkin v. Grendel’s Den (1982) isn’t quite on par with prohibition, but it was still a pretty big deal. SCOTUS ruled that a Massachusetts law that gave schools and churches the power to prevent businesses within 500 feet of their doors from obtaining alcohol permits violated the Establishment Clause by muddling up religion and government. Grendel’s Den represents just one of countless cases in the zoning laws v. houses of worship debate.

This list is by no means exhaustive. Add other religious freedom issues and cases you think merit inclusion in the comments section below. Which of these cases shed light on how the Supremes might rule in Greece v. Galloway? Legal nerds, go nuts!

Categories: Beliefs

Brian Pellot

Brian Pellot

Brian Pellot is director of global strategy at RNS. He is based in London. For his blog on freedom of expression and religious freedom, visit brianpellot.religionnews.com.

14 Comments

  1. Brian Pellot

    Brian Pellot

    Post author

    Pew Research provides a good overview of Greece v. Galloway re Marsh v. Chambers precedent. Check it out! http://www.pewresearch.org/fact-tank/2013/11/06/5-facts-about-the-u-s-supreme-courts-public-prayer-case/

  2. Good afternoon Brian, I am a 45 year old mother of 2 and grandmother of 6, I am a christian believer and I want to make a law: No student will be not allowed to play any type of sport on Sundays, Sundays will be set aside for the day of family and recreation. Our children spend 5 days a week in school minus holidays and I believe Sundays should not be allowed a day of any type of competition of any sort. If you can help me or guide me to the appropriate person to begin this accomplishment. I live in Richmond Indiana.

    • Why the Sundays, why not Saturday? Or any other day of the week?
      I hope it’s not going to be religion-based, since then you won’t have much of a chance getting this done.

      Also “No student will be not allowed to play any type of sport on Sundays.” Makes it seem like they will be having to play sports.

      Finally, why do you want to tell other people what to do in their free time?

    • Unless you have a legitimate, non-BS secular purpose attached to it, it would never fly. It would appear to be government endorsement of Christianity.

  3. Good list, but a minor correction: Kitzmiller v. Dover was decided at the United States District Court for the Middle District of Pennsylvania, not SCOTUS.

  4. Terri, the law you propose would require amending the Constitution. You should contact your Congressman to get the ball rolling on an amendment. I believe your Congressman is Luke Messer. His website is http://messer.house.gov/ . Good luck.

  5. Brian Pellot

    Brian Pellot

    Post author

    You’re absolutely right re Kitzmiller v. Dover, Jack. I’ve amended the text above to say United States District Court for the Middle District of Pennsylvania rather than SCOTUS. Many thanks.

  6. Honorable mention: Church of Lukumi Babalu Aye v. City of Hialeah. The court ruled that the City of Hialeah’s ordinance prohibiting animal sacrifice unconstitutional.

    “religious beliefs need not be acceptable, logical, consistent or comprehensible to others in order to merit First Amendment protection”.– Justice Anthony Kennedy

  7. Brian, a good summary of church-state conlaw. I would add Torcaso v. Watkins (1961) “in which the court reaffirmed that the United States Constitution prohibits States and the Federal Government from requiring any kind of religious test for public office, in the specific case, as a notary public.” (Wikipedia)

    As an Atheist, I have taken issue Americans United position in Town of Greece v. Galloway on my Secular Law blog at www.secularlaw.blogspot.com. AU’s support for nonsectarian prayers doesn’t protect the liberty of nontheists — the freedom from government sponsored prayer. No matter which side wins in Galloway, there will still be God-belief at the town council’s meetings. Instead, AU should have argued for either no prayer or a moment of silence. That’s what separation of church and state requires.

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