HY 357 Lecture Notes - Lecture 49: School Voucher, Lemon V. Kurtzman
6 Jun 2018
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The First Amendment: Freedom of Religion
The First Amendment enumerates what many Americans consider to be their basic civil liberties:
freedom of religion, speech, and the press, as well as the right to peaceful assembly and to
petition the government for the redress of grievances. Exactly what constitutes freedom of
religion and freedom of speech are matters that have come before the courts many times.
The framers of the Constitution saw religion as a matter of choice. Unlike many
countries, the United States does not have an official or state religion. Indeed, the First
Amendment specifically states, "Congress shall make no law respecting an
establishment of religion. . . ." Nevertheless, questions on tax exemptions for religious
organizations and on whether public schools should have prayer or Christmas pageants
have raised thorny problems for the courts to consider.
"Wall of separation" versus government accommodation
Thomas Jefferson believed a "wall of separation" should exist between government and
religion, which meant maintaining a strict separation between church and state. Those
who, instead, favor government accommodation argue that government can assist
religion if that assistance is given in a neutral manner so that it does not favor one
religious group over another or favor religious groups in general over other groups. Both
schools of thought have swayed the Supreme Court in the 20th century. Searching for a
middle ground, the Court devised the Lemon test, based on the 1971 case Lemon v.
Kurtzman that concerned the use of public money for a parochial school. The Court held
that, to be constitutional, any law has to have a secular purpose, the purpose can
neither advance nor inhibit religion, and the law cannot excessively entangle
government with religion. Since 1971, the Lemon test has been applied in a wide variety
of cases, and although few justices endorse the doctrine unambiguously, no majority
has ever come together to do more than tinker with it. As the Court has grown more
conservative, its decisions have tended more toward the position of government
accommodation. The Supreme Court upheld school voucher programs that allow
students to use public funds to attend the schools of their choice,
including parochial (religiously affiliated) schools.
Free exercise of religion
The Constitution does more than forbid "establishment" of a religion. It also guarantees
that individuals will enjoy "free exercise" of their own religious beliefs. This guarantee
creates a rather difficult situation, though. Policies that work too hard to accommodate
the free exercise of religious beliefs stray dangerously close to establishing religion.
Policies that force a sharp division between public life and private morality, on the other
hand, hamper the exercise of deeply held beliefs. The Supreme Court has worked hard
to formulate a constitutional doctrine that avoids either of these pitfalls, but the path is a
perilous one. Current Court doctrine protects the free exercise of religion from laws that
are not neutral toward a faith, such as laws banning animal sacrifice targeted at a
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