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What is the basis of Church and State Case Law? [NOTE: Indicate U. S. Constitutional basis,
which amendments are pertinent, AND list landmark cases]
The legal framework for Church and State is rooted in the first Amendment of the Constitution.
Amendment I states that, 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. The key language for religion is that Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof. In other words, Congress
cannot make laws that promote a specific religion, nor can it inhibit a persons desire to practice
a religion. They seem to be opposing forces of law, but work together to uphold a citizens
In order to further delineate between the two aspects of the law, two clauses can be identified.
The first clause is the establishment clause. This clause states that Congress (under the guide of
the 14th amendment) shall make no law respecting the establishment of religion. As this applies
to schools; schools, principals, and teachers cannot promote religion so that it appears a certain
religion or any religion should be followed. The second clause is the free exercise clause of
religion. This states that Congress shall make no law that prohibits the free exercise of religion.
As it applies to schools, schools, principals and teachers cannot prohibit a student from freely
exercising his/her religion. The first thing that you should do when trying to understand a case is
to first decide if it is an establishment issue or a free exercise case. If the suit is trying to stop the
school from doing something it is the establishment clause and if the suit is trying to get the
school to let something happen than it is the free exercise clause.
In one landmark case, McCollum v. Board of Education, 333 U.S. 203 (1948) a decision was
made that forbade religious instruction in public schools. In another landmark case, the United
States Supreme Court decided the landmark case entitled Lemonv. Kurtzman, 403 U.S. 602
(1971) and established a three-part test for establishment cases to see if the protections of the
United States Constitution were violated. In this case, the Court considered the constitutionality
of state laws that allowed direct support for the salaries of teachers of secular subjects in
parochial and other nonpublic schools.
A three-prong test named the Lemon test originated from this case. This test was identified as the
standard by which any establishment of religion cases would be judged. Since these cases allege
that the government is establishing a religion or promoting one religion over another, the points
to check all focus on what the government is doing. If the government action fails any of these
three prongs, the action is unconstitutional. The three prongs are:
1) The government action must have a secular (non-religious) purpose;
2) The government action must have a primary effect that neither advances nor impedes religion;
3) The government action must avoid excessive governmental entanglement with religion.

Since 1992 we have seen the United States Supreme Court move in the direction of using two
additional tests that actually make it more difficult to show that the government fails the
establishment clause. The first fairly recent test sometimes used is the Coercion Test,
basically looking for proof that there exists direct or indirect governmental coercion on
individuals to profess a faith. The second additional test appears to be a compromise between the
Lemon test and the Coercion Test and that is the Endorsement Test under which
governmental action would be struck down if it has the purpose or effect of endorsing religion
by conveying a message favoring a particular religious belief. This is a much easier standard for
the government to pass. This can now be explained by asking the following five questions:
1) Does the government action have a secular purpose?
2) Does it have a primary effect of advancing or impeding religion?
3) Does it avoid excessive entanglement with religion?
4) Does it endorse religion?
5) Does it coerce individuals to profess a faith?
Free Exercise means the government cannot prevent or impede religious practices. A Balancing
Test with a two-part assessment is used for free exercise cases:
1) Is the religious practice that is being inhibited actually dictated by a sincere and legitimate
religious belief? If yes, go to part two.
2) Given that there exists a sincere and legitimate religious belief, to what extent is it inhibited?
If the impairment is substantial, the court then evaluates whether the state action serves a
compelling interest that justifies the burden imposed on the exercise of religious beliefs.
Landmark Case involving the free establishment clause:
Wisconsin v. Yoder, 406 U.S. 205 (1972), the prominent case challenging school attendance by
Amish children. In Wisconsin v. Yoder, Amish children were seeking to be exempted from
compulsory education after eighth grade or age 14. The school was demanding attendance as
required by Wisconsin state law until the age of 16. The Amish contended that the law prevented
them from exercising their religion since the children needed to learn crafts and trades important
to the survival of their religious community. The United States Supreme Court asked first if the
religious practice that was being inhibited was actually dictated by a sincere and legitimate
religious belief. The Amish argued that their belief was sincere and legitimate, that they had for
centuries practiced their religion within a community-developed setting with a commitment to
live simply and not incorporate technology into their lives. Their ability to be self-dependent is
critical to their faith, and apprenticing is an important piece for essential skills to be passed on to
the youth. Wisconsin could not defy the Amishs way of life, which is historically grounded
and is embedded in their religious practice. But to what extent were the sincere and legitimate
beliefs of the Amish inhibited? The Amish would say that the impairment was substantial. It is
critical to the Amish that the children are apprenticed and the Amish are willing to let this wait
until after eighth grade since they value the importance of their children learning the basics of
reading, writing and mathematics. But the age of 14 is ripe for them to learn skills and to be
integrated into the religious life of the community, which is dependent on their learning these
skills. In the end, the United States Supreme Court ruled in favor of the Amish. Essential to the
Amish case was the fact that Amish children did not become derelicts of the larger society and

thus the argument about education for good citizenry did not carry any weight. For the Amish,
the balance was in favor of their ability to train their children for apprenticeships in contributing
to their society, which almost all did.

Facts in this case:

Some school board members for Cape Henlopen High School are proposing a Bible Study Class.
It would be offered as an elective class for high school students. The curriculum would involve a
textbook. It is being presented as a class on the history of the bible and how it has been
referenced by literature and art.
Mark which type of case this is:
Establishment Clause
Free Exercise Clause
The test or tests
(one component per line)
Does the government action
have a secular (non-religious

Does the government have a

primary effect that neither
advances nor impedes

Does it avoid excessive

entanglement with religion?

Lawyers arguments for the

parents on behalf of the child
The option of a bible study
class only seeks to study the
bible and therefor pushes
Christianity as a preferred
religion in the school.

Lawyers arguments for the

The class provides a historical
look at the bible. The bible has
been a subject of literary
analysis for many years. This
class clearly has a secular
purpose in its historical

It may not be intentional, but

this class, as being the only
elective based on religion, will
only encourage Christianity.

There will be a textbook to

accompany the course in an
effort to make clear the
historical significance of the
bible and its impact on

The mere option of this class

in a public school domain is
an example of government
entanglement with religion.

As this is an optional academic

course, there is no
entanglement with religion. It
simply provides students with
world history. World history
and world civilization classes
study religions.

Does it endorse religion?

Does it coerce individuals to

profess a faith?

This class endorses

Christianity by idealizing the
significance of the bible.
Students may be coerced or
pressured by friends taking
the class, which establishes
Christianity as a preferred

A class that provides literary

and art analysis of the bible
provides students with
important historical context.
This class is optional for any
students interested. Students
who do not wish to take the
class, do not have to.

Your overall assessmentWho will win the case, do you believe? I believe the school will be
able to introduce the elective course. The course does not promote Christianity as it is
presented. However, I do think it is a fine line that the teacher and curriculum developers will
have to walk to avoid government entanglement and coercion.