From The Bloody
Tenet of Persecution, for Cause of Conscience - Roger Williams freedom of
conscience in 1644.
A Letter Concerning
Toleration - John Locke on religious toleration in 1689.
Virginia Declaration of Rights, 1776 - Note numbers XV and XVI.
draft of the Declaration of Independence - Note that in this draft there
is only one reference to a deity whereas there are four in the final version.
Final Text of the Declaration of Independence, July 4 1776
for a Bill for Establishing Religious Freedom, by Jefferson 1779 - Madison
pushed this through the Virginia legislature in 1786 as the Virginia
Statute for Religious Freedom.
Articles of Confederation, 1781 - There are two references to religion in
this, the blueprint for the first government of the United States after the
American Revolution. Year of our Lord is used in the preamble in
reference to the date, and the term Great Governor of the World is used in the
Madison, Memorial and Remonstrance -1785 - Written in opposition to
"A Bill establishing a provision for Teachers of the Christian
Religion" in Virginia, Madison brilliantly made the philosophical case
for a strict separation between church and state. Note that he quotes The
Virginia Declaration of Rights, 1776.
Statute for Religious Freedom, 1786
Northwest Ordinance, July 13, 1787 - Relevant passages may be found in the
second to last paragraph before the Articles begin, Article 1, and Article 3.
Federalist Papers - In Jefferson's words, "the best commentary on the
principles of government...ever written."
Constitutional Convention debates and the Anti-Federalist Papers - Along
Federalist Papers, the best source as to original intent.
Constitution - There is only one real reference to religion in the
original document and that is the "no religious test' clause. Some
claim that the words "Sundays excepted" in Article I Section 7 and
Year of our Lord in Article VII are evidence supporting the anti separation
point of view.
speech proposing the Bill of Rights, June 8, 1789 - Madison proposed and
argued the case for a Bill of Rights. Note that his fourth amendment
resembles the First Amendment and that his fifth amendment prohibits the
states from violating "the equal rights of conscience, or the freedom of
the press, or the trial by jury in criminal cases."
of Rights and the Amendments to The Constitution - Note the First and
Farewell Address, 1796 - Relevant passages may be found between the two
five cents stamps and beside the thirteen cents stamp.
Danbury Letter - This is the letter in which Jefferson used the phrase
"wall of separation between church and state" in reference to the
Gettysburg Address - Lincoln used the phrase "nation under God"
in the last sentence.
Day as a day of prayer for permanent peace - In 1950 Congress authorized
and requested the President to call upon the American people to observe
Memorial Day by praying.
Day of Prayer - In 1952 Congress directed the President to proclaim a
National Day of Prayer every year.
of Allegiance - Officially adopted by Congress in 1942, the words
"under God" were added in 1954. Click here
for more information.
Motto - Signed by President Eisenhower in 1956, Congress declared the
national motto to be "In God We Trust."
Family Life Act - In 1981, Congress authorized federal grants to public or
nonprofit private organizations or agencies for services and research in the
area of premarital adolescent sexual relations and pregnancy. The
constitutionality of this was upheld in Bowen
v. Kendrick (1988).
Equal Access Act,
1984 - Allowed the formation of student-led, special interest,
non-curriculum clubs, including religious ones, in public schools.
Hailed as a victory by conservative religious groups, it has led to an
increase in religiously based clubs in schools, but ironically, it has also
led to the formation of, among others, gay and lesbian clubs. A fact
which caused the Salt Lake City School Board to ban all non-curriculum clubs
in 1996. It was found to be constitutional in West
Side Community School v. Mergens (1990). Click here
for more information.
Freedom Restoration Act of 1993 - Passed with bipartisan support and
signed by President Clinton, this restored the compelling governmental
interest test discarded by the Court in Oregon
v. Smith (1990). It was struck down as an unconstitutional
violation of the separation of powers in 1997.
Statement on Religious Expression in Public Schools - Released in 1995.
Clinton's Memorandum on Religious Exercise and Religious Expression in the
Federal Workplace - Released in 1997.
Clinton's Guidelines on Religious Exercise and Religious Expression in the
Federal Workplace - Released in 1997.
Ishtook Amendment -
v. United States (1879) - A free exercise case involving polygamy, it
was the first time Jefferson's "wall of separation " metaphor was
used. It also differentiated between the constitutionally protected
freedom of belief and freedom of action which does not necessarily enjoy
the Holy Trinity v. United States (1892) - An immigration case in
which Justice Brewer referred to the United States as a "Christian
v. New York (1925) - A free speech case which, using the Fourteenth
Amendment, began the "incorporation" of the First Amendment as a
limitation on the states.
v. Board of Education (1930) - Allowed the purchase of textbooks in
secular subjects with public funds for the use of students in parochial
schools. Basis for the "child benefit" theory established in Everson
v. Board of Education (1947).
v. Connecticut (1940) - Applied the Free Exercise Clause to the states
using the Fourteenth Amendment, continuing the incorporation that began with
v. New York (1925). This was the first of the Jehovah's
School District v. Gobitis (1940) - The Court ruled that a public
school could compel students to recite the Pledge of Allegiance without
violating the First Amendment. Three years later the Court reversed
itself in West
Virginia Board of Education v. Barnette (1943). Both of
these cases involved the Jehovah's Witnesses.
Virginia Board of Education v. Barnette (1943) - Struck down a
compulsory flag salute law as a violation of freedom of speech.
v. Board of Education (1947) - The Court ruled that pubic funding
provided to parochial school students for transportation did not violate the
Establishment Clause because the aid benefited the child not the school, but
Justice Black, writing for the majority, used the "wall of
separation" metaphor and relied on Jefferson and Madison to interpret the
meaning of the clause as providing a strict separation of church and state.
This case also applied the Establishment Clause to the states.
v. Board of Education (1948) - Struck down a state law that permitted
religious groups to use public school classrooms during school hours for the
purpose of religious instruction as a violation of the Establishment Clause.
v. Clauson (1952) - While reiterating the principle of strict
separation, the Court found that a program allowing for "released
time" from school to attend off campus religious instruction classes did
not meet the test established in Everson
v. Board of Education (1947) and McCollum
v. Board of Education (1948). Justice Douglas, for the majority,
wrote, "We are a religious people whose institutions presuppose a Supreme
Being," and concluded that to disallow the program in question would
endorse a philosophy of hostility to religion. The main difference
between the programs in McCollum
v. Board of Education (1948) and Zorach
v. Clauson (1952) seems to have been the level of coercion involved
rather than the location of the instruction. Justices Black, Jackson,
and Frankfurter, who had written opinions in favor of the result in McCollum
v. Board of Education (1948), dissented strongly.
v. Brown (1961) - The Court rejected a claim by Orthodox Jewish
businessmen that Sunday closing laws violated their free exercise rights.
v. Watkins (1961) - Struck down a state law that mandated a
declaration of a belief in God as a condition for public employment.
v. Vitale (1962) - The first of the school prayer cases, the Court
struck down daily recitation of a state authored prayer in public schools as a
violation of the Establishment Clause.
School District v. Schempp (1963) - Reasserting its holding in the
Court struck down a state law that required daily Bible readings in public
schools. Established the "secular purpose" test for
v. Verner (1963) - The Court ordered a state to pay unemployment
benefits to a Seventh-Day Adventist even though she refused to make herself
available on Saturday as required by law. This case established the
doctrine used in subsequent cases that in order to infringe upon free
exercise, the state must show a compelling interest to do so and protect that
interest by the least intrusive means possible.
of Education v. Allen (1968) - The Court found that a state program of
lending approved textbooks free of charge to all students including those in
private and parochial schools was constitutional.
v. Arkansas (1968) - Struck down a state law that prohibited the
teaching of evolution in schools as a violation of the Establishment Clause.
v. Kurtzman (1971) - Struck down laws allowing states to pay the
salaries of teachers of secular subjects in parochial schools. The Court
also established the three part Lemon Test for establishment from rulings in
previous cases beginning with Abington
School District v. Schempp (1963). In order to pass the test a
statute must meet the three following conditions.
- It must have a secular legislative purpose.
- Its primary effect must neither advance nor inhibit religion.
- It must not foster an excessive government entanglement with religion.
v. Yoder (1972) - Drawing from their ruling in Sherbert
v. Verner (1963), the Court found that a compulsory school attendance
law violated the free exercise rights of Amish parents who believed high
school attendance to be contrary to their religion.
for Public Education v. Nyquist (1973) - Struck down various types of
state aid to private and parochial schools including a tuition reimbursement
program for parents of children attending nonpublic schools on the grounds
that it violated the second prong of the Lemon Test.
v. Pittenger (1975) - Expanding on Committee
for Public Education v. Nyquist (1973), the Court found that several
state programs giving aid to parochial schools failed the Lemon Test and
therefore violated the Establishment Clause. Consistent with the
"child benefit" theory put forth in Cochran
v. Board of Education (1930), Everson
v. Board of Education (1947), and Board
of Education v. Allen (1968), aid for the purchase of textbooks was
v. Graham (1980) - Struck down a state law requiring the posting of a
copy of the Ten Commandments, purchased with private contributions, on the
wall of each public school classroom in the State as having no secular
legislative purpose, and therefore violating the Establishment Clause.
v. Vincent (1981) - The Court ruled that public universities which
allowed political student-led groups to use campus buildings for their
meetings could not deny equal privileges to a Christian student group on
v. Chambers (1983) - The Court rejected a claim that a chaplain paid
with state funds and conducting a prayer at the beginning of each session of
the state legislature represented a violation of the Establishment Clause on
the grounds that the U.S. Congress had been doing the same for over 200 years.
v. Allen (1983) - The Court ruled that a state program allowing
parents to deduct educational expenses, including tuition at parochial
schools, on their income taxes did not violate the Establishment Clause.
Their reasoning was based on the fact that this was one of many deductions
offered to taxpayers and that it was available to parents of public and
private school students.
v. Donnelly (1984) - Using American history as the basis for its
decision, the Court ruled that a Christmas display, including among other
things a nativity scene, erected by a city in a park located in the heart of
the shopping district and owned by a nonprofit organization did not violate
the Establishment Clause. Combined with Marsh
v. Chambers (1983) and Mueller
v. Allen (1983), this seemed to represent a shift on the Court to a
more "accommodationist" view of the Establishment Clause.
Justice O'Connor advocated an endorsement test in a concurring opinion.
Rapids v. Ball (1985) - The Court ruled that two programs entitled
Shared Time and Community Education gave aid to parochial schools that, while
having a secular purpose had the effect of promoting religion and therefore
violated the Establishment Clause.
v. Felton (1985) - Decided on the same day as Grand
Rapids v. Ball (1985), the Court found a similar aid program to be
v. Jaffree (1985) - Struck down a state law authorizing a one minute
period of silence in public schools for the purpose of "meditation or
voluntary prayer" as a violation of the Establishment Clause.
Justice O'Connor, in a concurring opinion, held out the possibility that a
differently worded moment of silence law might pass muster. The minority
saw the law as an example of "benevolent neutrality", and Justice
Rehnquist attacked the doctrine of strict separation and the reliance on the
"wall of separation" metaphor as "bad history".
v. Aguillard (1987) - Struck down a state law that prohibited the
teaching of evolution in public schools unless accompanied by instruction in
the theory of "creation science" as lacking a secular purpose and
therefore a violation of the Establishment Clause.
v. Kendrick (1988) - Upheld the Adolescent
Family Life Act, which authorizes federal grants to public or nonprofit
private organizations or agencies for services and research in the area of
premarital adolescent sexual relations and pregnancy.
County v. ACLU (1989) - This case dealt with two recurring holiday
displays on public property. The Court found that while a Menorah
displayed next to a Christmas tree outside of a county office building did not
violate the Establishment Clause, a nativity scene displayed by itself in the
county courthouse one block away did. This can be seen as a refusal to
extend the decision reached in Lynch
v. Donnelly (1984).
Side Community School v. Mergens (1990) - The Court found that the Equal
Access Act, 1984 did not violate the Establishment Clause, allowing the
formation of religiously based clubs in public schools.
v. Smith (1990) - The Court ruled that the denial of unemployment
benefits to members of the Native American Church who were fired because of
their sacramental use of peyote did not violate the Free Exercise Clause.
This case is most noteworthy because, in his majority opinion, Justice Scalia
rejected the "compelling governmental interest" test as a basis for
decisions in free exercise cases, which led to the passage of the Religious
Freedom Restoration Act of 1993.
v. Weisman (1992) - The Court found an invitation by a public school
to a local clergyman to have an invocation and benediction during the
graduation ceremonies to be a violation of the Establishment Clause.
v. Catalina (1993) - The Court ruled that a public school district
supplying a sign language interpreter for a deaf child at a Roman Catholic
high school did not violate the Establishment Clause.
of Babalu v. Hialeah (1993) - Struck down a law, passed in reaction to
the practices of the Santeria religion, that outlawed animal sacrifice as a
violation of the Free Exercise Clause.
Lambs Chapel v. Moriches Union Free School (1994) -
Square Review v. Pinnette (1995) - The Court found that an unattended
cross placed in a square used as a public forum and for public activities by
the Ku Klux Klan during the Christmas season did not violate the Establishment
A. Newdow v. US Congress, et al. (2002) - The Ninth Circuit
Court of Appeals ruled that a 1954 act of Congress inserting the words
"under God" into the Pledge of Allegiance is unconstitutional.