LEGAL FACT SHEET, First Amendment

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."


* The Constitution forbids not only state practices that "aid one religion...or prefer one religion over another," but also those practices that "aid all religions" and thus endorse or prefer religion over nonreligion. Everson v. Board of Education of Ewing, 330 U.S. 1, 15 (1947).

* In determining whether a particular practice violates the Establishment Clause, courts must apply the three-pronged test established by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971). Where the government's action fails any one of the following three prongs, it is unconstitutional:

(1) whether the government's action has a secular purpose;
(2) whether the primary effect is to advance or endorse religion, and
(3) whether the policy or practice fosters an excessive entanglement between government and religion.


* The Supreme Court has invalidated various forms of school sponsored prayer, including voluntary classroom prayers and scripture readings, School Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963), moments of silence, Wallace v. Jaffree, 472 U.S . 38 (1985) and posting of the Ten Commandments, Stone v. Graham, 449 U.S. 39 (1980).

* In 1992, the Supreme Court held in Lee v. Weisman, ___ U.S. ___, 112 S.Ct. 2649 (1992), that establishing a period for prayer at public school graduation ceremonies violated the Establishment Clause. Although the Fifth Circuit Court of Appeals has all owed graduation prayer where a majority of graduating seniors requested that a prayer be given by a student volunteer, Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963 (5th Cir. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 2950 (1993), that ruling is inconsistent with Lee and only applies within the three states comprising the Fifth Circuit (Texas, Louisiana and Mississippi).

* Federal courts in Iowa, New Jersey and Virginia have held that student-initiated prayers of the type at issue in Jones are forbidden by the Establishment Clause. See ACLU v. Blackhorse Pike Reg. Bd. of Educ., Dkt. No. 93-5368 (3rd Cir. June 25, 1993); Friedmann v. Sheldon Community Sch. Dist., Dkt. No. C93-4052 (N.D. Iowa, May 28, 1993) vacated on standing grounds, Dkt. No. 93-2375 (8th Cir. May 28, 1993); Gearon v. Loudon County Sch. Bd., Dkt. No.93-730-A (E.D. Va. June 21, 1993), stayed pending appe al, Dkt. No. 93-1770 (4th Cir. June 23, 1993). Contra Harris v. Joint School District No. 241, 821 F. Supp. 638 (D.Idaho 1993), appeal docketed, No. 93-35839 (9th Cir. June 15, 1993).


* Although the Supreme Court has not ruled on the constitutionality of Bible distribution on public school grounds during school hours, the Court of Appeals for the Seventh Circuit has ruled that such activities violate the Establishment Clause. Berger v. Rensselaer Central School Corp., 982 F.2d 1160 (7th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 2344 (1993).


* Once a school district opens its facilities for use by students or members of the community during non-school hours, the Free Speech Clause of the First Amendment prohibits the school district from discriminating against groups seeking access, including religious groups, based on the viewpoint the groups wish to express. Lamb's Chapel v. Center Moriches School District, ___U.S. ___, 113 S.Ct. 2141 (1993).

* School district officials may not supervise or participate in the delivery of a religious message. Furthermore, any request by a religious group for special privileges -- including access that is significantly different in either quality or quantity from the access granted to other student or community groups -- would raise serious Establishment Clause problems. See, Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 17 (1989).


* The Supreme Court has held that displays of religious symbols such as nativity scenes on public property violate the Establishment Clause if they convey a message that is primarily religious rather than secular. See County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573 (1989); Lynch v. Donnelly, 465 U.S. 668 (1984).

* Although the Supreme Court has not ruled on the issue of public school observances of religious holidays, the Court has been vigilant in the public school context to ensure that schools do not engage in practices that convey a religious message or imply an endorsement of religion. Holiday observances that focus on the religious significance of Christmas to Christians, rather than on those aspects of the holiday that have become part of our secular culture, are impermissible.

ACLU Department of Public Education/November 17, 1994
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