Law Commons^™

The Establishment Clause: Its Original Public Meaning And What We Can Learn From The Plain Text, Carl H. Esbeck

Faculty Publications

Modern times in church-state relations began in 1947 with the Supreme Court’s decision in Everson v. Board of Education. The justices in both the majority and dissent said they were interpreting the Establishment Clause based on the intent of the founding generation. However, rather than looking to Congress’s lawmaking in the summer of 1789 that led to the First Amendment, the justices relied on the Virginia disestablishment from four years prior, as well as the efforts of just two statesmen, James Madison and Thomas Jefferson.

For the next half century, the High Court’s search was for events and prominent …

After Espinoza: What's Left Of The Establishment Clause?, Carl H. Esbeck

Faculty Publications

Consistent with the Establishment Clause, the Supreme Court had permitted the government to fund public and private K-12 schools, so long as any direct aid was not diverted to an explicitly religious purpose. In Espinoza v. Montana Dept. of Rev., the Court held that when there is a government program with a secular purpose, such as education, the Free Exercise Clause requires that the program be available without regard to religion. Clearly the Religion Clauses have undergone a major transformation since the days of no parochial school aid whatsoever in the 1970s and 80s. So, it bears asking: What …

Do Discretionary Religious Exemptions Violate The Establishment Clause, Carl H. Esbeck

Faculty Publications

The Establishment Clause is not violated when government enacts regulatory or tax legislation but provides, concerning these burdens, an exemption for those holding conflicting religious beliefs and practices. Such accommodations are at the discretion of a legislature and have as their purpose to ameliorate hardships borne by religious minorities and other dissenters who find themselves out of step with the prevailing social or legal culture. Statutory religious exemptions are commonplace in this nation where there is a long and venerable tradition of religious tolerance toward our neighbors, as well as those who have made their way to America to escape …

Unwanted Exposure To Religious Expression By Government: Standing And The Establishment Clause, Carl H. Esbeck

Faculty Publications

For nearly half a century the Supreme Court has relaxed traditional standards of justiciability and permitted taxpayer standing when a claimant has invoked the Establishment Clause in a lawsuit to prohibit government funding of religion. The Court has recently cutback, however, permitting taxpayer standing only when a tax is extracted from the claimant and money is appropriated by a legislature to fund a statutory program that directs the use of public aid for religion.

A Religious Organization’S Autonomy In Matters Of Self-Governance: Hosanna-Tabor And The First Amendment, Carl H. Esbeck

Faculty Publications

In Hosanna-Tabor, a teacher suing her employer, a church-based school, alleged retaliation for having asserted rights under a discrimination statute. The School raised the “ministerial exception,” which prohibits ministers from suing their religious employer. The Court held the exception was constitutionally required. Before giving the facts that convinced it that this teacher was a “minister,” the Court had to distinguish the leading case of Employ. Div. v. Smith. Plaintiffs in Smith held jobs as counselors at a drug rehabilitation center. They were fired for illegal drug use (peyote), and later denied unemployment compensation. The Native American Church ingests peyote during …

Uses And Abuses Of Textualism And Originalism In Establishment Clause Interpretation, Carl H. Esbeck

Faculty Publications

This article takes up the curious tale as to why the text and drafting record in the House and Senate were ignored by the Court in Everson, as well as what the text and debate can tell us about contemporary theories making the rounds. One theory of conservatives is that the Establishment Clause was not intended to prohibit support for religion so long as no religion is preferred.

Panel Discussion At "Signs Of The Times: The First Amendment And Religious Symbolism", Carl H. Esbeck

Faculty Publications

No abstract provided.

Protestant Dissent And The Virginia Disestablishment, 1776-1786, Carl H. Esbeck

Faculty Publications

In Everson v. Board of Education (1947), the Supreme Court elevated the events surrounding the disestablishment of the Anglican Church in Virginia during and soon after the American Revolution as a principal guide for the meaning of the Establishment Clause. The rule to come out of the Virginia experience is that support for religion should be voluntary thus, no active support by the government. An in-depth examination of James Madison's Memorial and Remonstrance opposing Patrick Henry's Assessment Bill is undertaken here not only because of its role in the Virginia disestablishment, but because it is the most important document on …

What The Hein Decision Can Tell Us About The Roberts Court And The Establishment Clause, Carl H. Esbeck

Faculty Publications

This extended essay plays off the Supreme Court's recent decision in Hein v. Freedom From Religion Foundation, Inc., 127 S. Ct. 2553 (2007) (plurality opinion), rejecting taxpayer standing where the claim on the merits challenges discretionary actions by officials in the executive branch said to violate the establishment clause. While the matter directly at hand is the scope of taxpayer standing first permitted in Flast v. Cohen (1968), the essay uses the "injury in fact" requirement for standing to delve into the manner by which the four opinions in Hein give us insight into how the Roberts Court will approach …

When Accommodations For Religion Violate The Establishment Clause: Regularizing The Supreme Court's Analysis, Carl H. Esbeck

Faculty Publications

This article sets forth five rules with respect to what government may do to accommodate religious practice and five rules with respect to what government may not do. As it turns out the Supreme Court has said that most religious accommodations are left to the broad discretion of legislators and public officials. So long as the object of the accommodation is to protect or expand religious freedom, as distinct from expanding religion, the accommodation will be permitted.

The Establishment Clause As A Structural Restraint: Validations And Ramifications, Carl H. Esbeck

Faculty Publications

The opening phrase of the First Amendment to the U.S. Constitution provides, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The free exercise clause functions as an individual right with its purpose being to forestall personal religious harm. Its underlying principle is that in religious matters a person ought to be free of coercion caused by the government and thereby not made to suffer for cause of conscience. The function of the establishment clause is altogether different, for its purpose is to restrain government from using its powers to act on matters …

Differentiating The Free Exercise And Establishment Clauses, Carl H. Esbeck

Faculty Publications

The purpose of the Establishment Clause is not to safeguard individual religious rights. That is the role of the Free Exercise Clause, indeed its singular role. The purpose of the Establishment Clause, rather, is as a structural restraint on governmental power. Because of its structural character, the task of the Establishment Clause is to limit government from legislating or otherwise acting on any matter "respecting an establishment of religion." The powers that fall within the scope of the foregoing clause (denied to government, hence within the sole province of religion) and the powers outside this clause (hence, authority vested in …

Myths, Miscues, And Misconceptions: No-Aid Separationism And The Establishment Clause, Carl H. Esbeck

Faculty Publications

In neutrality theory the recipients of vouchers, grants, and purchase-of-service contracts are eligible to participate as providers in government social service programs without regard to their religious character. Indeed, religious beliefs and practices are prohibited bases for screening out those who want to be welfare program providers. Notable examples of congressional social service legislation conforming to the rule of religious neutrality are the ‘charitable choice‘ feature imbedded in the Welfare Reform Act of 1996 and the Community Services Block Grant Act of 1998, as well as the provision allowing issuance of child care vouchers to indigent parents in the Child …

The Establishment Clause As A Structural Restraint On Governmental Power, Carl H. Esbeck

Faculty Publications

This Article inquires into whether the singular purpose of the Establishment Clause is to secure individual rights, as is conventionally believed, or whether its role is more properly understood as a structural restraint on governmental power. If the Clause is indeed structural in nature, then its task is to negate from the purview of civil governance all matters "respecting an establishment of religion." Conceptualizing the role of the Establishment Clause as either rights-securing or structural has profound consequences for the nation's constitutional settlement concerning the interrelationship of government and religion.

A Constitutional Case For Governmental Cooperation With Faith-Based Social Service Providers, Carl H. Esbeck

Faculty Publications

This Article will refer to separationism as based on "older assumptions." The Court's presuppositions concerning the nature and contemporary value of religion and the proper role of modem government underlie what will be referred to as a "traditional analysis" of the case law. Part I is a partial overview of the Supreme Court's cases since Everson, and has the goal of making the strongest arguments-within the framework of separationism-for the constitutionality of governmental welfare programs that permit participation by faith-based social service providers.

Part II is about separationism's major competitor, a theory centered on the unleashing of personal liberty to …

The Establishment Clause As A Structural Restraint On Governmental Power, Carl H. Esbeck

Faculty Publications

This Article inquires into whether the singular purpose of the Establishment Clause is to secure individual rights, as is conventionally believed, or whether its role is more properly understood as a structural restraint on governmental power. If the Clause is indeed structural in nature, then its task is to negate from the purview of civil governance all matters “respecting an establishment of religion.” Conceptualizing the role of the Establishment Clause as either rights-securing or structural has profound consequences for the nation's constitutional settlement concerning the interrelationship of government and religion.

Establishment Clause Limits On Governmental Interference With Religious Organizations, Carl H. Esbeck

Faculty Publications

In this article it will be argued that the establishment clause, properly viewed, functions as a structural provision regimenting the nature and degree of involvement between government and religious associations." The degree of involvement should be a limited one, although it is clear that the interrelationship need not nor cannot be eliminated altogether. Although the degree of desired separation has proven to be a continuing controversy, the goal of separation is not so divisive. The aim of separation of church and government is for each to give the other sufficient breathing space. The ordering principle is reciprocity in which "both …