Welcome to Law and Religion, I believe that you will enjoy the course.

A few years ago we were

challenged by the Council Of Legal education on our establishment as a law school within a Christian
institution yet a legal course with religion was nascent and we had simply relegated much discussion on
religion to the School of Religion. Upon working as one of the members of the University Curriculum
Framework committee with the goal of harmonizing general units in order to produce graduate with
distinct competence, I took upon myself the task of establishing a general course on Law and Religion.
The course will help us look at where we are with law and religion because they influence each other. A
good law or a bad law has a bearing generally on the practice of religion.

I will be very active in the class watsup and I expect us to have current nuggets on this Topic.

My contacts is dojwang@anu.ac.ke and 0729861806.

As we start reflect upon a devotional thought by in the book of Isaiah that declares that the Lord is our
Judge, law giver and King! Notice that according to Isaiah both the Executive, Legislature and Judiciary is
ultimately within God’s power and He occupies all this offices. Could this be the source of the modern
concept of separation of church and state but importantly the check and balance where we do not allow
any one to occupy the Three branches of the government. ( For the Lord is our Judge. The Lord is our
Law giver, The Lord is our King; He will save us Isaiah 33:22)

Law and Religion

The course explores the impact of religion on the law and the law on religion. We will consider various
historical, cultural and constitutional perspective of these from a comparative perspective.
Contemporary issues on religion and law will be considered including g the aspect of religion and covid
restrictions, blasphemy arguments against Prophet Mohammed cartoons, charity law, clergy
confidentiality, sanctity of life

1. Kenya constitution on Religion, the place of prohibition to discriminate based on Religion

2. Separation of Church and state and the Establishment Clause

3. Blasphemy law

4. Abortion and Life; all.matters Roe vs Wade , 1,2 ; Casey USA Supreme Court, Kenya constitution and
the issue of privacy, body autonomy etc

5.


THE FIRST
AMENDMENT
ENCYCLOPEDIA
PRESENTED BY THE JOHN SEIGENTHALER CHAIR OF EXCELLENCE IN FIRST
AMENDMENT STUDIES

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Home >> Encyclopedia >> Articles

Establishment Clause (Separation of

Church and State)
By Hana M. Ryman and J. Mark Alcorn

First Amendment and Religion

MAKE SURE YOU CLEARLY DISTINGUISH BETWEEN THE MEANING OF ESTABLISHMENT CLAUSE AND THE
FREE EXERCISE CLAUSE AND THE CASE LAW ON THIS;

The First Amendment has two provisions concerning religion:

the Establishment Clause and

the Free Exercise Clause.

The Establishment clause prohibits the government from "establishing" a religion. The precise
definition of "establishment" is unclear. Historically, it meant prohibiting state-sponsored
churches, such as the Church of England.

Today, what constitutes an "establishment of religion" is often governed under the three-part test
set forth by the U.S. Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971). Under the
"Lemon" test, government can assist religion only if (1) the primary purpose of the assistance is
secular, (2) the assistance must neither promote nor inhibit religion, and (3) there is no excessive
entanglement between church and state.

The Free Exercise Clause protects citizens' right to practice their religion as they please, so long
as the practice does not run afoul of a "public morals" or a "compelling" governmental interest.
For instance, in Prince v. Massachusetts, 321 U.S. 158 (1944), the Supreme Court held that a
state could force the inoculation of children whose parents would not allow such action for
religious reasons. The Court held that the state had an overriding interest in protecting public
health and safety.

Sometimes the Establishment Clause and the Free Exercise Clause come into conflict. The
federal courts help to resolve such conflicts, with the Supreme Court being the ultimate arbiter.

Check out similar cases related to Engel v. Vitale that deal with religion in schools and the
Establishment Clause of the First
Vashti McCollum sits outside the Supreme Court building in 1947, while awaiting arguments
before the court on her fight to ban religious education classes from an Illinois public school.
Her case was one of the cases in which the Supreme Court began to interpret the First
Amendment's religious establishment clause known as "separation of church and state." (AP
Photo/Herbert K. White. Reprinted with permission of The Associated Press)
The first clause in the Bill of Rights states that “Congress shall make no law
respecting an establishment of religion.”
Establishment clause of First Amendment often interpreted to require separation of
church and state

For approximately the first 150 years of the country’s existence, there was little
debate over the meaning of this clause in the Constitution. As the citizenry became
more diverse, however, challenges arose to existing laws and practices, and
eventually, the Supreme Court was called upon to determine the meaning of the
establishment clause.
Though not explicitly stated in the First Amendment, the clause is often interpreted
to mean that the Constitution requires the separation of church and state.
'Separation of church and state' metaphor rooted in early American fears of
government involvement
Roger Williams, founder of Rhode Island, was the first public official to use this
metaphor. He opined that an authentic Christian church would be possible only if
there was “a wall or hedge of separation” between the “wilderness of the world”
and “the garden of the church.” Williams believed that any government
involvement in the church would corrupt the church.
The most famous use of the metaphor was by Thomas Jefferson in his 1802 letter
to the Danbury Baptist Association. In it, Jefferson declared that when the
American people adopted the establishment clause they built a “wall of
separation between the church and state.”
Jefferson had earlier witnessed the turmoil of the American colonists as they
struggled to combine governance with religious expression. Some colonies
experimented with religious freedom while others strongly supported an
established church.

Thomas Jefferson created the most

famous use of the metaphor "separation of church and state" in a letter where he
mentioned a "wall of separation." (Image via White House Historical Association, painted by
Rembrandt Peale in 1800, public domain)
Jefferson fought to disestablish Anglican church in Virginia colony

One of the decisive battlegrounds for disestablishment was Jefferson’s colony of

Virginia, where the Anglican Church had long been the established church.

Both Jefferson and fellow Virginian James Madison felt that state support for a
particular religion or for any religion was improper. They argued that compelling
citizens to support through taxation a faith they did not follow violated their natural
right to religious liberty. The two were aided in their fight for disestablishment by
the Baptists, Presbyterians, Quakers, and other “dissenting” faiths of Anglican
Virginia.

During the debates surrounding both its writing and its ratification, many religious
groups feared that the Constitution offered an insufficient guarantee of the civil
and religious rights of citizens. To help win ratification, Madison proposed a bill of
rights that would include religious liberty.

As presidents, though, both Jefferson and Madison could be accused of mixing

religion and government. Madison issued proclamations of religious fasting and
thanksgivings while Jefferson signed treaties that sent religious ministers to the
Native Americans. And from its inception, the Supreme Court has opened each of
its sessions with the cry “God save the United States and this honorable court.”
Public school religion cases allow Supreme Court to define establishment clause
protection
It was not until after World War II that the Court interpreted the meaning of the
establishment clause.
In Everson v. Board of Education (1947), the Court held that the establishment
clause is one of the liberties protected by the due process clause of the Fourteenth
Amendment, making it applicable to state laws and local ordinances. Since then
the Court has attempted to discern the precise nature of the separation of church
and state.

In 1971 the Court considered the constitutionality of a Pennsylvania statute that

provided financial support to nonpublic schools for teacher salaries, textbooks, and
instructional materials for secular subjects and a Rhode Island statute that provided
direct supplemental salary payments to teachers in nonpublic elementary schools.
 The Schempp family,
pictured here, brought suit that led to a 1963 ruling by the Supreme Court in Abington
School District v. Schempp that banned bible reading and the recitation of The Lord's
Prayer in public schools, saying that it violated the First Amendment's establishment
clause requiring separation of church and state. (AP Photo/John F. Urwiller, used with
permission from The Associated Press.)
Lemon test developed to vet laws dealing with religious establishment
In Lemon v. Kurtzman (1971), the Court established a three-pronged test for laws
dealing with religious establishment. To be constitutional a statute must have “a
secular legislative purpose,” it must have principal effects that neither advance nor
inhibit religion, and it must not foster “an excessive government entanglement with
religion.”
Twenty-six years later the Court modified the Lemon test in Agostini v.
Felton (1997) by combining the last two elements, leaving a “purpose” prong and a
modified “effects” prong.
In County of Allegheny v. American Civil Liberties Union (1989), a group of
justices led by Justice Anthony M. Kennedy in his dissent developed a coercion
test: the government does not violate the establishment clause unless it provides
direct aid to religion in a way that would tend to establish a state church or involve
citizens in religion against their will.
Endorsement test used in cases involving religious displays on public property
Justice Sandra Day O’Connor proposed an endorsement test that asks whether a
particular government action amounts to an endorsement of religion.
In Lynch v. Donnelly (1984), O’Connor noted that the establishment clause
prohibits the government from making adherence to a religion relevant to a
person’s standing in the political community. Her fundamental concern was
whether government action conveyed a message to non-adherents that they are
outsiders. The endorsement test is often invoked in religious display cases.
In McCreary County v. American Civil Liberties Union (2005), the Court ruled that
the display of the Ten Commandments in two Kentucky courtrooms was
unconstitutional but refused in the companion case, Van Orden v. Perry (2005), to
require the removal of a long-standing monument to the Ten Commandments on
the grounds of the Texas State Capitol.

David Harlow, left, and

Michael Stys, view the Ten Commandments monument on display at the State
Judicial Building in Alabama in 2002. A U.S. District Court ruled that placing the
mounment in the state building was a violation of the separation of church and state.
(AP Photo/Dave Martin. Used with permission from The Associated Press)
Court says in neutrality test that government must treat religous groups the same
Questions involving appropriate use of government funds are increasingly subject
to the neutrality test, which requires the government to treat religious groups the
same as it would any other similarly situated group.
In a test of Ohio’s school voucher program, the Court held 5-4 in Zelman v.
Simmons-Harris (2002) that Ohio’s program is part of the state’s general, neutral
undertaking to provide educational opportunities to children and does not violate
the establishment clause. In his opinion for the majority, Chief Justice William H.
Rehnquist wrote that the “Ohio program is entirely neutral with respect to
religion.”
More recently, in 2022, the Supreme Court ruled 6-3 in Carson v. Makin that
Maine could not exclude families who send their children to religious schools from
its state-funded tuition reimbursement program. The program helped children who
live in rural areas without public schools nearby, but said the tuition could not be
used for religious schools. The court, in a ruling written by Justice John Roberts
Jr., said that the policy violated the parents' right to freely exercise their religion
and that a public benefit that flowed to a religious school based on a parent's choice
did not "offend" the establishment clause of the First Amendment.

From the colonial era to the present, religions and religious beliefs have played a
significant role in the political life of the United States. Religion has been at the
core of some of the best and worst movements in the country’s history. As
religious diversity continues to grow, concerns about separation of church and state
are likely to continue.

Facts and Case Summary - Engel v. Vitale

Facts and case summary for Engel v. Vitale, 370 U.S. 421 (1962)
School-sponsored prayer in public schools is unconstitutional.

Facts
A New York State law required public schools to open each day with the Pledge of Allegiance
and a nondenominational prayer in which the students recognized their dependence upon God.
The law allowed students to absent themselves from this activity if they found it objectionable. A
parent sued on behalf of his child, arguing that the law violated the Establishment Clause of the
First Amendment, as made applicable to the states through the Due Process Clause of the
Fourteenth Amendment.

Issue
Whether school-sponsored nondenominational prayer in public schools violates the
Establishment Clause of the First Amendment.
Ruling
Yes (6-1)

Reasoning
The majority, via Justice Black, held that school-sponsored prayer violates the Establishment
Clause of the First Amendment. The majority stated that the provision allowing students to
absent themselves from this activity did not make the law constitutional because the purpose of
the First Amendment was to prevent government interference with religion. The majority noted
that religion is very important to a vast majority of the American people. Since Americans
adhere to a wide variety of beliefs, it is not appropriate for the government to endorse any
particular belief system. The majority noted that wars, persecutions, and other destructive
measures often arose in the past when the government involved itself in religious affairs.

Concurrence
Justice Douglas
In his concurrence, Justice Douglas took an even broader view of the Establishment Clause,
arguing that any type of public promotion of religion, including giving financial aid to religious
schools, violates the Establishment Clause.

Dissent
Justice Stewart
Justice Stewart argued in his dissent that the Establishment Clause was only meant to prohibit
the establishment of a state-sponsored church, such as the Church of England, and not prohibit
all types of government involvement with religion. In particular, he found that the
nondenominational nature of the prayer and the "absentee" provision removed constitutional
challenges

. citing the difficulty of adopting one test to govern all circumstances.11 The Court also
employed variations on the Lemon test. For example, in Lynch v. Donnelly, issued in
1984, Justice O’Connor argued in a concurring opinion that in the first and second
prongs of the Lemon test, the Court should ask whether a government action
had endorsed religion.12 The Supreme Court as a whole sometimes used this
endorsement test.13 Further, in a 1997 decision, the Supreme Court seemed to suggest a
refinement of the last two prongs of the Lemon test, saying the Court uses three primary
criteria . . . to evaluate whether government aid has the effect of advancing
religion: looking to whether laws result in governmental indoctrination; define [their]
recipients by reference to religion; or create an excessive entanglement. 14
Apart from the Lemon factors, the Supreme Court has sometimes evaluated
Establishment Clause challenges by looking to whether the law is unduly coercive—
particularly in the context of government-sponsored prayer.15 Coercion includes at least
legal compulsion,16 but the Supreme Court has also held that indirect coercive
pressure created by government support for a particular religious belief can run afoul of
the Establishment Clause.17
Finally, the Supreme Court has sometimes reviewed laws by reference to historical
traditions—and in a 2022 ruling, said this was the test courts should use in place of
Lemon and the endorsement test.18 In decisions since the mid-1900s, the Court’s
Establishment Clause analysis has sometimes looked to the history of government
regulation or accommodation of religion, and the responses to those government
actions.19 In particular, some cases evaluating the constitutionality of government-
sponsored prayer practices have looked to historical practice, in addition to the coercion
analysis discussed above.20 Accordingly, the Supreme Court has ruled unconstitutional
prayer practices that it believed were inconsistent with early understandings of the
Establishment Clause,21 but upheld legislative prayer schemes that were consistent with
longstanding historical practices.22
In 2022’s Kennedy v. Bremerton School District the Supreme Court said it
had abandoned Lemon and its endorsement test offshoot in favor of an analysis focused
on original meaning and history.23 The Court said the shortcomings
of Lemon's 'ambitiou[s],’ abstract, and ahistorical approach to the Establishment
Clause Lemon test were apparent.24 Nonetheless, the Court did not expressly
overrule Lemon or other precedent applying that test, leaving questions about how
courts will apply those rulings in the future.25