Religious Freedom and the Supreme Court

Ronald B. Flowers (Ph.D. University of Iowa) is John F. Weatherly Emeritus Professor of Religion at Texas Christian University. Flowers is the author of That Godless Court: Supreme Court Decisions on Church-State Relationships (2005).Melissa Rogers (J.D. University of Pennsylvania School of Law) is Visiting Professor of Religion and Public Policy and Director, Center for Religion and Public Affairs, at Wake Forest University Divinity School.Steven K. Green (J.D. University of Texas, Ph.D. University of North Carolina) is Professor of Law and Director, Center for Religion, Law and Democracy, Willamette University.

An authoritative handbook, striking in its probing analysis of the enduring teachings of the First Amendment. -John Witte, Jr., Jonas Robitscher Professor of Law, Emory Law School, Director, Center for the Study of Law and Religion

• Part 1Introduction1 The Impact of the U.S. Supreme Court on American Religious Freedom 1 Understanding the Supreme Court 2 Understanding the Protection of ""Rights"" and ""Liberties""2 The Historical Background to the First Amendment Religion Clauses 3 Themes and Trends in First Amendment Interpretation 3 Originalism and Its Critics 4 ""Nonpreferentialism"" and Government Financial Aid for Religion 5 Incorporation of the Establishment Clause6 The ""Distinctiveness"" of Religion7 ""No-Aid Separation"" v. ""Evenhanded Neutrality""8 Use of Speech Principles in Religion Clause Jurisprudence9 Accommodation of Religion10 ""Play In the Joints""11 ""Complementary Values, Conflicting Pressures""4 What Is Religion? 5 The Concept of Standing 12 Flast v. Cohen13 Valley Forge College v. Americans United for Separation of Church and State14 Hein v. Freedom From Religion Foundation15 Elk Grove Unified School District v. Michael A. NewdowPart 2The Free Exercise Clause6 Basic Concepts and Development of Free Exercise Doctrine 16 The ""Belief-Action"" Dichotomy (Reynolds v. United States; Davisv. Beason)17 Religious Liberty as Due Process Liberty (Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary)18 Conscientious Objector Cases (United States v. Schwimmer; Girouard v. United States; Hamilton v. Regents of the University of California)19 Embracing Free Exercise as a Right (Cantwell v. State of Connecticut; West Virginia State Board of Education v. Barnette; Prince v. Massachusetts)20 Early Free Exercise on Government Property (Davis v. Commonwealth of Massachusetts; Murdock v. Pennsylvania; Heffron v. International Society for Krishna Consciousness; International Society for Krishna Consciousness v. Lee)7 Rise and Fall of Free Exercise Exemptions: From Sherbert to Smith 21 The Rise of Judically Mandated Free Exercise Exemptions (Sherbert v. Verner; Wisconsin v. Yoder)22 Refining the Sherbert Test (United States v. Lee; Thomas v. Review Board; Hobbie v. Unemployment Appeals Commission of Florida; Frazee v. Illinois Employment Security Department)23 Free Exercise in Transition (Bowen v. Roy; Lyng v. Northwest Indian Cemetery Protective Association; Goldman v. Weinberger; O'Lone v. Estate of Shabazz; Hernandez v. Commissioner of Internal Revenue; Jimmy Swaggart Ministries v. Board of Equalization)8 Rise and Fall of Free Exercise Exemptions: Smith and Beyond 24 The Fall of Judicially Mandated Free Exercise Exemptions (Employment Division v. Smith)25 The Free Exercise Clause Beyond Smith (Church of Lukumi Babalu Aye v. City of Hialeah)26 Congress Stands in the Gap: RFRA and RLUIPA (City of Boerne v. Archbishop Flores; Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal; Cutter v. Wilkinson)9 Churches and the Civil Justice System 27 Church Autonomy/Schisms (Watson v. Jones; Gonzalez v. Roman Catholic Archbishop of Manila; Kedroff v. St. Nicholas Cathedral; Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church)28 Religious Torts (United States v. Ballard; Nally v. Grace Community Church; Molko v. Holy Spirit Association; Moses v. Diocese of Colorado)10 Religious Organizations as Employers 29 Government Oversight of Employment Practices (National Labor Relations Board v. The Catholic Bishop of Chicago; Tony and Susan Alamo Foundation v. Secretary of Labor)30 Employment Actions by Religious Organizations (Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos; Equal Employment Opportunity Commission v. Pacific Press Publishing Association; Gellington v. Christian Methodist Episcopal Church, Inc.; Bollard v. California Diocese of the Society of Jesus) Part 3The Establishment Clause I11 Government Funding of Religious Schools: The Rise and Application of the ""No-Aid"" Principle 31 The Emergence of Nonsectarian Public Education and the No-Funding Principle; Developing Principles (Everson v. Board of Education of Ewing Township)32 The High Point of ""No-Aid"" (Lemon v. Kurtzman; Committee for Public Education and Religious Liberty v. Nyquist; Committee for Public Education and Religious Liberty v. Regan; School District of Grand Rapids v. Ball)12 Government Funding of Religious Schools: The Rise of Even-handed Neutrality and Private Choice 33 Mueller v. Allen; Zobrest v. Catalina Foothills School District; Agostini v. Felton; Mitchell v. Helms34 Zelman v. Simmons-Harris; Locke v. Davey13 Government Aid to Higher Education 35 Tilton v. Richardson; Hunt v. McNair36 Roemer v. Board of Public Works of Maryland14 Religious Organizations and Government-Funded Social Services 37 Bradfield v. Roberts; Bowen v. Kendrick38 ""Charitable Choice"" and the ""Faith-Based Initiative"" (Charitable Choice; The Bush Administration's Faith-Based Initiative [Executive Order 13279]; Freedom from Religion Foundation v. McCallum)15 Government Funds and Religious Institutions: A Look toward the Future Part 4The Establishment Clause II16 Religious Expression and Public Schools: Background, Released-Time Programs and the 1960's School-Prayer Decisions 39 Historical Background: The Common School Movement40 ""Released-Time"" Programs (McCollum v. Board of Education; Zorach v. Clauson)41 State-sponsored Prayer and Bible Reading: The 1960s Cases (Engel v. Vitale; School District of Abington Township v. Schempp)17 Religious Expression in Public Schools: Moments of Silence and Post-1960s School-Prayer Cases 42 Wallace v. Jaffree43 Lee v. Weisman44 Santa Fe Independent School District v. Doe18 Religious Expression in Public Schools: Religion and the Curriculum and Presidential Guidelines on Religion and Public Schools 45 Religion and the Public School Curriculum (Religious Objections to Curriculum: Evolution and Religion [Epperson v. Arkansas; Edwards v. Aguillard]46 ""Opt outs"" [Mozert v. Hawkins County Board of Education]47 School-sponsored Religious Displays48 Teaching About Religion in an Academic, Rather than a Devotional, Manner)49 Presidential Guidelines on Religious Expression in Public Elementary and Secondary Schools (""Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools"")19 Equal Access 50 Widmar v. Vincent51 Board of Education v. Mergens52 Lamb's Chapel v. Center Moriches Union Free School District53 Good News Club v. Milford Central School54 Other Religious Expression/Access Issues (Rosenberger v. Rector and Visitors of the University of Virginia)20 Religious Symbols on Government Property 55 Lynch v. Donnelly56 County of Allegheny v. American Civil Liberties Union57 Capitol Square Review v. Pinette58 McCreary County v. American Civil Liberties Union59 Van Orden v. Perry21 Government Acknowledgements of Religion, Government Chaplains, Religion and Politics, and Religion in the Governmental Workplace 60 Governmental Acknowledgements of Religion and Government Chaplains (Marsh v. Chambers; Katcoff v. Marsh; Delores Rudd v. The Honorable Robert D. Ray)61 Religion and Politics (McDaniel v. Paty; Branch Ministries v. Rossotti)62 Religion in the Federal Workplace (""Guidelines on Religious Exercise and Religious Expression in the Federal Workplace"")22 Religious Preferences/Delegations 63 Government Preferences of Religion (Torcaso v. Watkins; Larson v. Valente)64 Government Delegations of Authority to Religion (Larkin v. Grendel's Den; Board of Education of Kiryas Joel Village School District v. Grumet)23 Legislative Accommodation of Religious Exercise 65 Walz v. Tax Commission of the City of New York66 Trans World Airlines v. Hardison67 Estate of Thornton v. Caldor68 Corporation of Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos69 Texas Monthly v. Bullock70 Board of Education of Kiryas Joel Village School District v. Grumet71 Cutter v. WilkinsonAppendicesA Bill Establishing a Provision for Teachers of the Christian Religion A Bill for Establishing Religious Freedom Memorial and Remonstrance against Religious Assessments Selected Bibliography Notes