First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In the 1960s, the Court began to move away from the general neutrality principles embodied in the metaphor of a wall separating church and state, focusing more specifically on whether challenged laws had the purpose or effect of aiding religion.1 To evaluate the constitutionality of state criminal laws prohibiting commercial activities on Sunday, McGowan v. Maryland reviewed “the history of Sunday Closing Laws.” 2 That review led the Court to conclude that, although “the original laws which dealt with Sunday labor were motivated by religious forces,” such laws had subsequently lost “some of their totally religious flavor.” 3 Ultimately, the Court accepted the state’s judgment “that the [challenged] statutes’ present purpose and effect is not to aid religion but to set aside a day of rest and recreation.” 4 The Court held that creating a common day of rest embodied a secular purpose, and emphasized that the statute allowed “nonlaboring persons” to engage in a variety of nonreligious Sunday activities.5 However, the Court cautioned that a law might violate the Establishment Clause if “its purpose—evidenced either on the face of the legislation, in conjunction with its legislative history, or in its operative effect—is to use the State’s coercive power to aid religion.” 6

Formalizing this focus on purpose and effect, School District of Abington Township v. Schempp clarified:

The Court applied this analysis in Schempp to hold that two states violated the Establishment Clause by requiring schools to begin the school day with Bible readings.8 One of the states argued that the Bible readings served a secular purpose—promoting moral values and teaching literature.9 The Court rejected this claim based on evidence showing that the reading was a religious exercise.10

Impermissible religious purpose arose again in Epperson v. Arkansas, in which the Supreme Court invalidated a state law that prohibited teaching evolution in school.11 After reviewing the law’s history, the Court said there was “no doubt” that the law prohibited “discussing the theory of evolution because it is contrary to the belief of some that the Book of Genesis must be the exclusive source of doctrine as to the origin of man.” 12 This purpose of advancing a specific religious doctrine violated the First Amendment.13 By contrast, the Court concluded that a federal law relieving conscientious objectors from military service did not violate the Establishment Clause, even though it included only objectors whose religious beliefs opposed all wars, excluding objectors opposed only to specific wars.14 The Court believed that the law’s differing treatment of religious objectors did not doom the law where it did not facially discriminate between religions, and critically, where the government had demonstrated that the law served a number of valid secular purposes.15

By contrast, the Supreme Court rejected an Establishment Clause challenge to a textbook lending program in Board of Education v. Allen, applying the test outlined in Schempp.16 The law required public schools to lend textbooks to students, including students enrolled at private schools.17 The Court held that the law served a secular purpose—furthering children’s “educational opportunities” —and that there was no evidence that the law had the effect of impermissibly advancing religion.18 Among other factors, the Court noted that the textbooks were loaned to students, not parochial schools, and that the program included only secular textbooks.19 Consequently, the Court concluded the program aided only the secular education conducted in religious schools, rejecting the idea “that the processes of secular and religious training are so intertwined that secular textbooks furnished to students . . . are in fact instrumental in the teaching of religion.” 20

Footnotes

1

See, e.g., Torcaso v. Watkins, 367 U.S. 488, 489 (1961).

2

McGowan v. Maryland, 366 U.S. 420, 432 (1961).

3

Id. at 432–34.

4

Id. at 449. The Court employed a similar analysis to reject Establishment Clause challenges to Sunday Closing laws in three other opinions issued the same day as McGowan. Gallagher v. Crown Kosher Super Market, Inc., 366 U.S. 617, 630 (1961) (plurality opinion); Braunfeld v. Brown, 366 U.S. 599, 601 (1961) (plurality opinion); Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 598 (1961). Cf. Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 710 (1985) (holding that a state law giving workers the right not to work on their chosen Sabbath violated the Establishment Clause, given that the law’s “primary effect” was to “impermissibly advance[ ] a particular religious practice” ).

5

McGowan, 366 U.S. at 450–52.

6

Id. at 453.

7

Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 222 (1963).

8

Id. at 223–24. The laws allowed individual students to opt out of the readings, but nonetheless required the schools to conduct the readings. Id. at 205, 211–12. See also Chamberlin v. Dade Cnty. Bd. of Pub. Instruction, 377 U.S. 402, 402 (1964) (per curiam) (holding that a similar state law was unconstitutional under Schempp); Wallace v. Jaffree, 466 U.S. 924, 924 (1984) (mem.) (affirming lower court ruling holding state law authorizing teacher-led prayer unconstitutional); Treen v. Karen B., 455 U.S. 913, 913 (1982) (mem.), aff’g 653 F.2d 897 (5th Cir. 1981) (ruling state law authorizing student-led prayer during class unconstitutional).

9

Schempp, 374 U.S. at 223.

10

Id. at 224. See also id. at 225 ( “It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment. But the exercises here do not fall into those categories.” ).

11

Epperson v. Arkansas, 393 U.S. 97, 106–07 (1968). See also Edwards v. Aguillard, 482 U.S. 578, 593 (1987) (ruling unconstitutional a state law prohibiting teaching evolution unless “creation science” was also taught, where the law’s primary purpose was “to advance a particular religious belief” ).

12

Epperson, 393 U.S. at 107.

13

Id. at 106–07.

14

Gillette v. United States, 401 U.S. 437, 450 (1971).

15

Id. at 452–54. See also id. at 452 ( “[A] claimant alleging ‘gerrymander’ must be able to show the absence of a neutral, secular basis for the lines government has drawn.” ).

16

Bd. of Educ. v. Allen, 392 U.S. 236, 243 (1968).

17

Id. at 239.

18

Id. at 243–44.

19

Id. at 243–45.

20

Id. at 248. Subsequent Supreme Court cases approved of textbook lending programs deemed similar to the program upheld in Allen. See, e.g., Wolman v. Walter, 433 U.S. 229, 238 (1977); Meek v. Pittenger, 421 U.S. 349, 359 (1975) (plurality opinion). Both Wolman and Meek were partially overruled on other grounds by Mitchell v. Helms, 530 U.S. 793 (2000).