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Amendment I.聽聽Ratified December 15, 1791

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.

As the text of the First Amendment makes clear, originally it applied only to Congress, and not the states, which could make laws establishing churches and prohibiting the free exercise of religion. As a practical matter, the latter was not an issue by the time the Bill of Rights was adopted. States did still have established churches, however. In 1833, Massachusetts became the last state to stop funding and disestablish its church. In the last 150 years, the Supreme Court has ruled that the Due Process Clause of the Fourteenth Amendment (1868) (鈥渘or shall any State deprive any person of life, liberty, or property, without due process of law鈥�) expanded the application of the First Amendment and most of the Bill of Rights to state and local laws. Thus, the Court has required a uniform standard for both federal and state governments on major issues arising from violations of the Bill of Rights. The Court did not apply the Religion Clauses of the First Amendment to state and local laws until the mid-twentieth century (See West Virginia v. Barnette听补苍诲 Everson v. Board of Education).

The First Amendment includes freedoms of religion, speech, press, assembly, and petition. Freedom of religion is first, the key element of republican citizenship. This freedom is expressed in two clauses. First, the government may not establish a religion鈥攖hat is, make one religion the official, government-supported religion. But may the government promote or prefer religion generally, or even at all? Second, the government may not prohibit the free exercise of religion. But does protecting free exercise mean that all religious practices as well as beliefs must be allowed (See Reynolds v. U.S)? If not, how are we to distinguish between those practices which should and those which should not be protected?

This collection of cases introduces teachers and students to the legal debate over the First Amendment鈥檚 Religion Clauses through excerpted opinions of Supreme Court justices. While the cases are presented chronologically, they are also categorized by the focus each has on the two Religion Clauses, as well as by which cases involve schools or universities (Appendix A).聽 These cases present the most clear, contentious, and instructive opinions on freedom of religion. The goal is to permit the reader to decide how each opinion attempts to protect religious freedom.

This goal means that, in the earlier cases that developed the Court鈥檚 understanding of the establishment and free exercise of religion, we emphasize the Court opinions, the opinion that declares which party in the case won or lost and, more important, why they deserved to do so. In explaining the Court鈥檚 opinion or in concurring with or dissenting from it, justices present reasoned arguments on the meaning of the Constitution or the law; on precedents or previous, similarly decided cases; or on the implications of this case for deciding later ones. Therefore, in these later cases (from the 1980s to the present), where the opinions of the justices are more divided, we often represent cases through dissenting or concurring opinions rather than the Court opinions. In addition to reflecting on the consequences of earlier decisions, concurring or dissenting opinions sometimes show the direction in which the Court is moving.

Collections such as these are not intended to be read straight through from beginning to end鈥攁s ambitious and useful as this might be. Locating a particular case in the stream of precedents鈥攕imilarly decided cases鈥攊s crucial for understanding it. Justices bolster their arguments by reference to earlier Court opinions and write theirs with an eye to shaping future ones. At which cases, however, should a reader enter the often contentious conversation of the justices? One place to start is with the last three cases in the collection, Documents 21-23.

The first of these three introductory cases is Town of Greece v. Susan Galloway, et al. This case decided whether a New York State city council鈥檚 practice of opening its meetings with sectarian prayers, those of a particular religion, violated the Constitution. In her dissent, Justice Elena Kagan presents a moving series of objections that the practice actually does 鈥渢end to establish鈥� a religion by making it appear official to citizens attending the meetings. Writing in support of the Court majority, concurring Justice Samuel A. Alito argued, against Justice Kagan, that she exaggerated the seriousness of the town鈥檚 actions or inactions. With the arguments of the justices in mind, the reader might review why the Court ruled school prayer unconstitutional in Engel v. Vitale听补苍诲 Lee v. Weisman.

The issue of establishment concerns not only prayer but the place of religious symbols (as in Christmas displays on public property, Lynch v. Donnelly, including representations of the Ten Commandments (See Van Orden v. Perry and McCreary County v. ACLU of Kentucky). These cases show how the Court has expanded what it means to establish religion, that is, for government to endorse, support, or prefer, one particular religion to the disadvantage of others. Is the government endorsing a religion when a public school permits a football pep rally with a student-led prayer? What of a town鈥檚 war memorial, a 40-foot high cross at a major highway, to the region鈥檚 fallen veterans? The principles involved in the town of Greece case go far beyond the city council chambers.

Next, the reader might turn to Trinity Lutheran Church of Columbia, Inc. v. Comer, a case involving state aid for a religious school鈥檚 playground. This Missouri case illustrates the potential conflict between the ways the Court has understood the Establishment Clause and how it has understood the Free Exercise Clause. May a state prohibit a religious school from competing for a state grant to pave a playground? Is the state denying the school鈥檚 free exercise of religion or is it preventing establishment of religion? To see how the Court has decided this conflict, the reader might turn to the first school cases, including Everson v. Board of Education and McCollum v. Board of Education. These early cases set forth the doctrine that government may not directly aid religious schools or promote religious doctrines in the public schools. These should not be read without Justice William H. Rehnquist鈥檚 dissent in Wallace v. Jaffree, which provides a different historical account of the meaning of religious establishment. According to Justice Rehnquist, 鈥渆stablishment鈥� meant not aiding religion but setting up an official state church. (In Lee v. Weisman, Justice David H. Souter offered a different history, leading to a different conclusion.) The later school funding cases of Lemon v. Kurzman听补苍诲 Zelman v. Simmons-Harris, show the complexities of the funding issue and how the Court has expanded the type of aid that a school could receive from government. Arguments over free exercise rights are foreshadowed in Church of Lukumi Babalu Aye, Inc. v. Hialeah and Locke v. Davey, among other cases. In Trinity Lutheran Church of Columbia, Inc. v. Comer the clashing opinions of Justices Neil Gorsuch and Sonia Sotomayor offer a series of arguments for and against the constitutionality of state aid to a church-run school based on their respective understandings of religious freedom and establishment of religion.

Masterpiece Cakeshop, Ltd., et al., Petitioners v. Colorado Civil Rights Commission, et al. raises the question of the reach of the Religious Free Exercise Clause. May a business owner use his religion as a restraint on the scope of civil rights laws? The first case in the book, Reynolds v. U.S., a unanimously decided case, turned aside Reynolds鈥� contention that the Free Exercise Clause of the First Amendment meant that it protected the polygamy his Mormon faith permitted. The Court found that freedom of religion cannot justify violating laws against improper or criminal behavior鈥攖he core of the controversy the religious business owner faced in Masterpiece Cakeshop.

From Reynolds one might review the older free exercise cases, including the flag salute case of West Virginia v. Barnette听补苍诲 Wisconsin v. Yoder, which exempted Amish children from state school attendance laws. Perhaps the most controversial free exercise case is Oregon v. Smith, which ruled that a person鈥檚 free exercise of religion is not violated by an otherwise valid law. Church of Lukumi Babalu Aye, Inc. v. Hialeah听补苍诲 Burwell v. Hobby Lobby further expanded free religious exercise, the latter through its interpretation of a law, rather than the First Amendment.

These elaborations on three cases are just examples of how the cases can be linked to illustrate continuities and breaks in the interpretation of the law. Another way to approach the cases is by asking basic questions, such as what is free exercise, what is establishment, what might the elected branches do to protect First Amendment rights?

Did the Court get off on the wrong step by defining establishment as not only government favoring one religion over another but more broadly by favoring religion over non-religion? Consider the very first Establishment Clause cases involving schools, Everson v. Board of Education, McCollum v. Board of Education赂 and Engel v. Vitale. Does aiding a religious school advance, that is, tend to establish, that religion? Apparently, funds for school construction pass muster but, at least at one point, funds for teachers鈥� salaries do not. (See Lemon v. Kurtzman). Perhaps the strongest expression of this viewpoint occurs in Justice John Paul Stevens鈥� and Justice Souter鈥檚 opinions. In Wallace v. Jaffree, Justice Stevens wrote that 鈥淸T]he First Amendment requires that a statute must be invalidated if it is entirely motivated by a purpose to advance religion.鈥澛� Likewise, Justice Souter in the school prayer case of Lee v. Weisman wrote of 鈥渢he settled principle that the Establishment Clause forbids support for religion in general no less than support for one religion or some.鈥� (See as well Justice Sotomayor鈥檚 dissent in Trinity Lutheran).

Contrast these views on how governments should treat religion with Justice Rehnquist鈥檚 dissent in Wallace v. Jaffree, Justice Clarence Thomas鈥檚 concurrence in Van Orden v. Perry, and Justice Antonin Scalia鈥檚 dissents in Lee v. Weisman听补苍诲 McCreary County, all of which emphasize a government interest in promoting religion in general. This view seeks support in the traditional use of religious language and ideas in public proclamations by presidents and Congress, as in Lincoln鈥檚 Gettysburg Address. In fact, in this view, the elimination of a national established religion on the one hand and the public embrace of religion on the other are both necessary for the promotion of free religious exercise, a central purpose of the first amendment.

Justice Souter replied to this objection, contending, in Lee, that 鈥渞eligious invocations in Thanksgiving Day addresses and the like, rarely noticed, ignored without effort, conveyed over an impersonal medium, and directed at no one in particular, inhabit a pallid zone worlds apart from official prayers delivered to a captive audience of public school students and their families.鈥� Do school principals then need to be monitored more closely than presidents for constitutional violations? In his Van Orden聽concurrence Justice Thomas made the test of constitutionality whether beliefs were being coerced鈥攖hat is punished by legal penalties. Does his likening of religious expression to free speech鈥攚hose constitutionally protected robustness can be acrimonious, vulgar, and even dishonest鈥攆ail to protect religious minorities?

Must we choose between religious free exercise and religious establishment? Have the Court鈥檚 interpretations over the past 70 years actually made these opposed principles? Is accommodating a minority religion the same as privileging it? Is a state law allowing moments of silence in public schools a subtle way of legalizing prayer and therefore establishing a religion? Are there not ways to see free exercise and establishment as parts of a larger comprehensive view of religious freedom?

All of this discussion leads to other questions, such as the proper constitutional role for the Court to play. Early on, Justices Felix Frankfurter and Robert H. Jackson (See West Virginia v. Barnette and McCollum v. Board of Education) worried that the Court was substituting its own opinions for the practical wisdom of elected legislatures and school boards. Justices Rehnquist and Scalia would also see practical wisdom expressed in the religious language in presidential speeches and proclamations, congressional resolutions, and the traditions of the American people (See Wallace v. Jaffree and Lee v. Weisman). Contrast these views with the confidence of Justices Souter and Stevens on the Court鈥檚 judgments versus their skepticism of the views from the past, which they regard as antiquated. Justice Stevens once declared in dissent, 鈥淔ortunately, we are not bound by the Framers鈥� expectations鈥攚e are bound by the legal principles they enshrined in our Constitution,鈥� which the Court interprets (See Van Orden v. Perry). But how much confidence should we citizens have in the wisdom of the Court? Or the justice of our traditions?

These are a few of the many questions readers of these opinions ought to be raising as they exercise their capacities as human beings and citizens. Ultimately, it is not the Courts but informed citizens who will determine the vitality of the First Amendment and of republican self-government.

Establishment (Schools)

• Establishment, Schools (government aid), Everson v. Board of Education of the Township of Ewing
• Establishment, Schools (government aid), Illinois ex rel. McCollum v. Board of Education of School District (no. 71, Champaign
  County, Illinois)
• Establishment, Schools (prayer), Engel v. Vitale
• Establishment, Schools (government aid), Lemon v. Kurtzman
• Free Exercise, Establishment, Schools, Widmar v. Vincent
• Establishment, Schools (prayer), Wallace v. Jaffree
• Establishment, Schools (prayer), Lee v. Weisman
• Establishment, Schools (government aid), Zelman v. SimmonsHarris
• Free Exercise, Establishment, Schools (government aid), Locke v. Davey
• Establishment, Town of Greece v. Susan Galloway, et al.
• Free Exercise, Establishment, Schools (government aid), Trinity Lutheran Church of Columbia, Inc. v. Comer

Establishment (Religious Symbols in Public Spaces)

• Establishment, Lynch v. Donnelly
• Establishment, Van Orden v. Perry
• Establishment, McCreary County v. American Civil Liberties Union of Kentucky

Free Exercise

• Free Exercise, Reynolds v. United States
• Free Exercise (and free speech), West Virginia State Board of Education v. Barnette
• Free Exercise, Sherbert v. Verner
• Free Exercise, Schools, Wisconsin v. Yoder
• Free Exercise (and free speech), Establishment, Schools, Widmar v. Vincent
• Free Exercise (and free speech), Establishment, Schools, Edwards v. Aguillard
• Free Exercise, Employment Division, Department of Human Resources of Oregon v. Smith
• Free Exercise, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah
• Free Exercise, Establishment, Schools, Locke v. Davey
• Free Exercise, Burwell, Secretary of Health and Human Services, et al. v. Hobby Lobby Stores, In., et al.
• Free Exercise, Establishment, Schools, Trinity Lutheran Church of Columbia, Inc. v. Comer
• Free Exercise, Masterpiece Cakeshop, Ltd., et al., Petitioners v. Colorado Civil Rights Commission, et al.

Free Exercise (Free Speech), Schools

• Free Exercise (and free speech), Schools, West Virginia State Board of Education v. Barnette
• Free Exercise, Schools, Wisconsin v. Yoder
• Free Exercise (and free speech), Establishment, Schools, Widmar v. Vincent
• Free Exercise (and free speech), Establishment, Schools, Edwards v. Aguillard
• Free Exercise, Establishment, Schools, Locke v. Davey
• Free Exercise, Establishment, Schools, Trinity Lutheran Church of Columbia, Inc. v. Comer

The 鈥淎鈥� questions are for the listed case, while the 鈥淏鈥� questions relate this case to others in the volume.

1. Reynolds v. United States

A. What is the basis for the Court opinion? How do the Free Exercise and Establishment Clauses of the First Amendment shape it? Is there another legal source that guides the opinion?

B. If the 20th century Court had strictly adopted Reynolds鈥� logic, how might later Courts have decided free exercise cases such as Sherbert v. Verner or Wisconsin v. Yoder? Was Justice Antonin Scalia in Oregon v. Smith simply reinstating Reynolds?

2. West Virginia v. Barnette

A. Questions for both the Court opinion and the dissent: If a compelled oath is at best invalid, according to Justice Jackson, what about an oath of office or oath of American citizenship? Is Justice Frankfurter right that 鈥淟aw is concerned with external behavior, and not with the inner life of man鈥�? Can there be a shared political life unless the laws concern themselves, at some level, with 鈥渢he inner life of man鈥�?

B. How should the justices in all our cases weigh a concern for patriotism or any common good against a concern for 鈥渟mall and helpless鈥� religious minorities? How would you (or could you) square Justice Scalia鈥檚 dissent in the commencement prayer case of Lee v. Weisman, as well as his Court opinion in Oregon v. Smith, with Justice Jackson鈥檚 Court opinion here?

3. Everson v. Board of Education

A. Does Justice Black have in mind a particular religion that he thinks government should be separated from? Is his 鈥渨all鈥� metaphor justified by American history or even a closer reading of Jefferson鈥檚 letter to the Danbury Baptists, which he quotes?

B. Are public schools a part of political authority in the same way legislatures and agencies, such as the Department of the Treasury, are? Should that make a difference for the Court in the way it treats schools? Does the Court鈥檚 affirmation of Ohio鈥檚 voucher program for private schools in distressed areas (See Zelman v. Simmons-Harris) extend Everson or change or even reverse it?

4. McCollum v. Board of Education

A. How does Justice Black develop his notion of establishment of religion? How does establishment come to mean something other than establishing an official church? Would he think the Court would one day be considering the constitutionality of prayers said at a public high school鈥檚 pep rally before a football game?

B. Justice Jackson鈥檚 concurrence worries about whether 鈥渋t is possible, even if desirable . . . to isolate and cast out of secular education all that some people may reasonably regard as religious instruction.鈥� Compare Justice Sotomayor鈥檚 dissent in Trinity Lutheran v. Comer聽as an example of denying any secular content to a religious education and therefore denying government support for religious schools. Whose understanding of religion is right? Is everything a religious school undertakes (for example, playground sports) religious? May, for example, the Puritans be studied seriously in public schools鈥攖hat is, by considering the truth of their beliefs?

5. Engel v. Vitale

A. In his footnote included in the excerpt, Justice Black writes 鈥淭here is, of course, nothing in the decision reached here that is inconsistent with the fact that school children and others are officially encouraged to express love for our country by reciting historical documents such as the Declaration of Independence which contain references to the Deity.鈥� Is the Declaration merely an 鈥渉istorical document鈥�? Are its religious references (e.g., 鈥渁ll men are created equal鈥�) merely historical or are they intended to have enduring political and legal relevance, including its religious language?

B. After comparing the respective first amendment histories of Justice Black and Justice Rehnquist in Wallace v. Jaffree, which historical account seems more accurate? Should justices even try to be their own legal historians?

6. Sherbert v. Verner

A. Is Justice Harlan鈥檚 dissent correct that the Court鈥檚 Establishment and Free Exercise Clauses jurisprudence collide in this case? What sort of test would the Court opinion propose for the state to accommodate an individual鈥檚 religion?

B. How far does the right of free exercise go and when do laws based on the common good begin (see both Reynolds听补苍诲 Oregon v. Smith? For example, the Court recently ruled unanimously that many employee protections do not apply to employees of religious institutions, if the employees are regarded as fulfilling a religious role, as types of ministers. How far can religious exemptions go in protecting religious institutions from law suits by its employees? Compare what the Court did here with what it did in Burwell v. Hobby Lobby. In Hosanna-Tabor Evangelical Lutheran Church and School v. U.S. Equal Employment Opportunity Commission 565 US 171 (2012) a unanimous Court (the opinion written by Justice Ginsburg) found that a discharged employee, who argued her job as a teacher was not religious, had in fact been designated a 鈥渕inister鈥� of her church and therefore could not sue for being fired for violating church doctrine.

7. Lemon v. Kurzman

A. How coherent is the three-pronged Lemon test? Is each part of the test consistent with the other parts? How does one distinguish between religious and secular purposes? How does one determine that a law has as its 鈥減rincipal or primary effect鈥� either advancing or inhibiting religion? When does a law foster 鈥渆xcessive government entanglement with religion鈥�?

B. In light of the controversy the Court鈥檚 Establishment Clause cases stirred up, one might ask whether the Lemon test applies to Supreme Court decisions themselves? That is, isn鈥檛 the Supreme Court itself a governmental entity having effects on religion and secularism and entangling itself with the practice of religion? Or is the Supreme Court above the law and politics? Based on the arguments you have read so far, do you think the Court is approaching these issues appropriately as one branch of the separated powers of our government?

8. Wisconsin v. Yoder

A. How would the Court have ruled if a religious sect insisted on separate education for girls and women? Or if it denied membership to blacks? Should the Court always accept the 鈥渦nchallenged testimony of acknowledged experts in education and religious history鈥� (or any other field) in deciding this or any other case? Does Yoder signify the privileging of minority sects over larger ones? How or how not?

B. How does Yoder grow out of Sherbert v. Verner? How does Yoder help explain Justice Scalia鈥檚 opinion in the free exercise case of Oregon v. Smith, which both concurring and dissenting justices claimed overturned precedents that protected religious freedoms?

9. Widmar v. Vincent

A. What are the advantages of using a free speech argument here in addition to a religious free exercise one?

B. If the Court had protected religious free exercise in the same vigorous way it protected free speech and expression, how might the Court have approached the free exercise cases following Widmar (See Church of Lukumi Babula Aye, Inc. v. City of Hialeah, Locke v. Davey, Burwell v. Hobby Lobby, and Masterpiece Cakeshop v. Colorado Civil Rights Commission)?

10. Lynch v. Donnelly

A. Does dissenting Justice Brennan鈥檚 “ceremonial deism鈥� argument let him have his cake and eat it too, in the face of Chief Justice Burger鈥檚 court opinion? Is not deism itself a religion, just as Unitarianism is?

B. Would non-Christian seasonal symbols (such as a menorah) be treated with as much scrutiny as Christian symbols? Would the secular good of religious toleration protect the minority non-Christian symbols but not the majority Christian ones? Has 鈥渄iscrete and insular minority鈥� protection鈥攕ee footnote 1 in the flag salute case (See West Virginia v. Barnette)鈥攂een interpreted to undermine majority or plurality religious freedom against secular objections?

11. Wallace v. Jaffree

A. How important should the original meaning of the text of the Constitution be for interpreting it today?

B. Who is more persuasive in his history of the First Amendment, Justices Black, Stevens, and Souter or Rehnquist and Thomas (See Everson v. Board of Education, McCollum v. Board of Education, Engel v. Vitale, Zelman v. Simmons-Harris, Van Orden v. Perry, and McCreary County v. ACLU of Kentucky)? What are the strengths and weaknesses of their respective arguments?

12. Edwards v. Aguillard

A. As in the court opinion in Wallace v. Jaffree, the motives of one legislator supporting the law played a crucial role in its reasoning. How does one assess the motives behind a law? Would the Court similarly overturn or sustain a state law banning the teaching of quantum theory or requiring or prohibiting a course promoting man-made climate change?

B. Is there more in this case about free speech than about religion? If so, would free speech (see Widmar v. Vincent) be a more appropriate argument?

13. Oregon v. Smith

A. Does Justice Scalia鈥檚 opinion clause unreasonably restrict religious free exercise, as both the concurrence and dissent charge? Does this opinion overturn the Amish exception to school attendance laws in Wisconsin v. Yoder? Why do three of the dissenting justices join part of Justice O鈥機onnor鈥檚 concurrence in the judgment?

B. How much of Oregon v. Smith remains in place given RFRA and subsequent opinions and laws protecting free exercise? Consider burdens on free exercise explored in Church of Lukumi Babalu Aye v. City of Hialeah, Locke v. Davey, Trinity Lutheran v. Comer, and Masterpiece Cakeshop v. Colorado Civil Rights Commission.

14. Lee v. Weisman

A. Why did Justice Kennedy cite social psychology studies to make a kind of coercion argument concerning teenage behavior? 鈥淲e do not address whether that choice [of protesting or standing in respect for a benediction] is acceptable if the affected citizens are mature adults, but we think the state may not, consistent with the Establishment Clause, place primary and secondary school children in this position.鈥� Does the first amendment apply differently children? Should it apply at all?

B. How does Justice Souter鈥檚 concurring argument against 鈥渘on-preferentialism鈥� support his objection to preferring any religion over non-religion? 鈥淲hen public school officials, armed with the state鈥檚 authority, convey an endorsement of religion to their students, they strike near the core of the Establishment Clause. However 鈥渃eremonial鈥� their messages may be, they are flatly unconstitutional.鈥� Why does Justice Scalia regard this decision as 鈥渙nly a jurisprudential disaster and not a practical one鈥�? How does his judgment reflect on the limits of the Court鈥檚 powers not only in religion cases? He predicted: 鈥淟ogically, that [elimination of the Pledge of Allegiance to the flag] ought to be the next project for the Court’s bulldozer.鈥� The Court declined to be logical and ducked the issue in what promised to be a case about the 鈥渦nder God鈥� phrase in the Pledge of Allegiance (Elk Grove United School District v. Newdow, 2004). One might raise a question applicable to other cases as well: If a citizen has a right, must he or she push it to its outer limits for it to be secure?

15. Church of the Lukumi Babalu Aye, Inc. v. Hialeah

A. Could the city council have drafted any health or animal treatment ordinance that could have survived challenge in the courts?

B. How zealous has the Court been subsequently in adopting the Court opinion鈥檚 reiteration of the 鈥渟trict scrutiny鈥� test of constitutionality for any law that impinges on religious freedom? How does this decision square with Justice Scalia鈥檚 Court opinion in Oregon v. Smith? Does it compel the result of Masterpiece Cakeshop v. Colorado Commission on Civil Rights?

16. Zelman v. Simmons-Harris

A. Based on what you can infer from Justice Souter鈥檚 dissent, suggest a defense of the constitutionality of the Cleveland plan. Why should his arguments that state aid would corrupt the independence of religious schools and incite religious conflict be a part of first amendment jurisprudence?

B. Answer Justice Souter鈥檚 rhetorical question, 鈥淗ow can a Court consistently leave Everson on the books and approve the Ohio vouchers?鈥� How does his defense of a high wall of separation of church and state differ from the earliest arguments, such as those in Everson v. Board of Education, McCollum v. Board of Education, and Engel v. Vitale?

17. Locke v. Davey

A. Is Washington State鈥檚 sole exclusion of 鈥渄evotional theology鈥� as justifiable as the exclusion for funding of any other major? What if Washington State had also excluded physical education, social work, and business as majors it would not fund?

B. Given other opinions of his you have read, such as his dissent in Wallace (see Wallace v. Jaffree), are you surprised by Chief Justice Rehnquist鈥檚 argument in this case? Is such a prohibition on funding, as in the Washington State Constitution (cited in footnote 5), a neutral stance or does it reflect a bias against religious study? Was Trinity Lutheran v. Comer more forthright in confronting the anti-Catholic Blaine Amendments to state constitutions, which, beginning in the 1870s, prohibited government funding of religious schools?

18. Van Orden v. Perry

A. How might Justice Thomas respond to Justice Stevens鈥� criticism of his originalist approach to constitutional interpretation?

B. From Justice Stevens鈥� dissent: 鈥淚t is our duty, therefore, to interpret the First Amendment鈥檚 command that 鈥淐ongress shall make no law respecting an establishment of religion鈥� not by merely asking what those words meant to observers at the time of the founding, but instead by deriving from the clause鈥檚 text and history the broad principles that remain valid today.鈥� How does his 鈥渓iving Constitution鈥� theory inform the decisions and arguments of recent justices, such as Justice Souter in his dissent in Lee v. Weisman and McCreary County (see McCreary County v. ACLU of Kentucky)?

19. McCreary County v. ACLU of Kentucky

A. Is Justice Souter correct that favoring 鈥渞eligion over irreligion鈥� is the same as favoring 鈥渙ne religion over another鈥�? Or is dissenting Justice Scalia correct? 鈥淚f religion in the public forum had to be entirely nondenominational, there could be no religion in the public forum at all.鈥� Or is he begging the question?

B. Justice Scalia contends, “Those responsible for the adoption of the Religion Clauses would surely regard it as a bitter irony that the religious values they designed those Clauses to protect have now become so distasteful to this Court that if they constitute anything more than a subordinate motive for government action they will invalidate it.鈥� How has the Court since the earliest cases confirmed or disputed his conclusion?

20. Hobby Lobby v. Burwell

A. Is Hobby Lobby鈥檚 argument for an exemption from the contraception mandate made best by the legal analysis or by its First Amendment free exercise claim?

B. Which free exercise cases seem most applicable to the arguments here? Is Justice Scalia consistent as author of the opinion in Oregon v. Smith and as voting with the majority here?

21. Town of Greece v. Galloway

A. Dissenting Justice Kagan cites George Washington鈥檚 letter to the Newport synagogue, but how might Justice Alito have used it in support of his concurring position?

B. How do the arguments here affirm or dispute the various arguments in the school prayer decisions, beginning with Engel v. Vitale and ending with Lee v. Weisman and the Ten Commandments opinions (see Van Orden v. Perry and McCreary County v. ACLU of Kentucky)? How might they influence arguments about religious symbols, such as a cross, on public memorials?

22. Trinity Lutheran v. Comer

A. With the clashing opinions here about 鈥減lay in the joints鈥� of the First Amendment Religion Clauses, are we back to the original issue of whether religion is fundamentally about individual conscience and worship or as that plus a religious institution鈥檚 activity within society?

B. Does Trinity Lutheran鈥檚 logic overthrow the rationale in the earlier Establishment Clause cases of Everson v. Board of Education and McCollum v. Board of Education? (See as well Wallace v. Jaffree). Does religious free exercise now constrict the earlier meaning of establishment of religion in the school funding cases? Is this the consequence of the 鈥減lay in the joints鈥� between free exercise and establishment both Justice Gorsuch and Justice Sotomayor note?

23. Masterpiece Cakeshop v. Colorado Civil Rights Commission

A. Why does Justice Thomas base his decision more on free speech or free expression than religious free exercise?

B. Does Masterpiece Cakeshop advance the unanimous free exercise argument in Church of Lukumi Babalu Aye? Or is it a return to the logic of the flag salute case of West Virginia v. Barnette? How does it stand in relation to the Court鈥檚 unanimous opinion upholding the validity of monogamous marriage laws in the first case in this book, Reynolds v. U.S.?