Tilton v.

Richardson
Facts: The federal Higher Education Facilities Act of 1963
provided construction grants to church-sponsored higher
educational institutions. The grants were to be used for the
construction of non-religious school facilities. The Act also
stipulated that twenty years after the grant had been given,
schools were free to use the buildings for any purpose.
Question: Did the Act violate the Religion Clauses of the First
Amendment?
Ruling: The Court held that only the 20-year limitation portion
of the Act violated the Religion Clauses of the First Amendment.
The Court invalidated the 20-year clause, arguing that
subsidizing the construction of facilities used for non-secular
purposes would have the effect of advancing religion. The Court
held that the church-related institutions in question had not used
their federally-funded facilities for religious activities, and that
the facilities were "indistinguishable from a typical state
university facility." The Court also held that the Act did not
excessively entangle the government with religion, noting that
college students were less susceptible to religious indoctrination,
that the aid was of "non-ideological character," and that one-time
grants did not require constant state surveillance.
Zobrest v Catalina Foothills School District
Facts: James Zobrest was deaf since birth. He attended public
school through the eighth grade where the local school board
provided a sign-language interpreter. Zobrest's parents elected
to send their son to a Roman Catholic high school and requested
that the local school board continue to provide their son with a
sign-language interpreter. The school board denied the request
on constitutional grounds. The Zobrests then filed suit, alleging
that the Individuals with Disabilities Education Act (IDEA) and
the Free Exercise Clause of the First Amendment required the
school district to provide the interpreter and that the
Establishment Clause did not bar such relief. The District Court
granted the school district summary judgment on the ground
that the interpreter would act as a conduit for the child's
religious inculcation, thereby promoting his religious
development at government expense in violation of the
Establishment Clause. The Court of Appeals affirmed.
Question: May a school district decline to provide an interpreter
to a deaf child based on the Establishment Clause of the First
Amendment?
Ruling: The Court held that the Establishment Clause did not bar
the school district from providing the requested interpreter.
Chief Justice Rehnquist reasoned that, because the IDEA creates
no financial incentive for parents to choose a sectarian school,
the presence of an interpreter is not linked to the state and is the
result of the private decision of individual's parents. "The service
at issue in this case is part of a general government program that
distributes benefits neutrally to any child qualifying as
'handicapped' under the IDEA, without regard to the 'sectarian-
nonsectarian, or public-nonpublic nature' of the school the child
attends," wrote Chief Justice Rehnquist.
Agostini v Felton the educational function of religious schools is invalid. Under
current law, the program in Aguilar will not be deemed to have
Facts. In Aguilar v. Felton, the Supreme Court of the United
the effect of advancing religion through indoctrination. There is
States held that the Establishment Clause of the First
no reason to presume that, simply because she enters a parochial
Amendment to the Constitution barred the city of New York from
school classroom, a full-time public employee such as a Title I
sending public school teachers into parochial schools to provide
teacher will depart from her assigned duties and instructions
remedial education to disadvantaged children pursuant to a
and embark on religious indoctrination. Nor under current law
congressionally mandated program. On remand, the District
can it be concluded that a program placing full-time public
Court entered a permanent injunction reflecting this Courts
employees on parochial campuses to provide Title I instruction
ruling. Twelve years later, the Petitioner, the Board of Education
would result in impermissible finance religious indoctrination.
of the City of New York and thus, the parties bound by that
Aguilars conclusion that the program at issue resulted in
injunction, seek relief from its operation. The Petitioner claims
excessive entanglement between church and state is not
that Aguilar cannot be squared with the Supreme Courts
consistent with current law because not all entanglements have
intervening Establishment Clause jurisprudence and ask that this
the effect of advancing or inhibiting religion. Therefore, New
Court explicitly recognize what the Supreme Courts more recent
Yorks Title I program does not run afoul of any of the three
cases already dictate: that Aguilar is no longer good law and that
primary criteria the Supreme Court now uses to evaluate
Petitioners are entitled under Federal Rule of Civil Procedure
whether government aid has the effect of advancing religion: (i)
(FRCP) 60(b)(5) to relief from the operation of the District
it does not result in religions indoctrination: (ii) does not define
Courts
its recipients by reference to religion or (iii) nor does it not
prospective injunction.
create an excessive entanglement. Therefore, Aguilar has been
undermined by subsequent Establishment Clause decisions and
Issue. Whether Aguilar has been undermined by subsequent
is no longer good law.
Establishment Clause decisions and is no longer good law?
Discussion. This case reverses the prior holding of Aguilar v.
Held. Yes. Judgment of the Court of Appeals reversed and
Felton that was based on outdated law. In this case, the Court
remanded to the District Court with instructions to vacate its
applied the current three-prong test used to determine whether
1985 order. The Supreme Courts cases subsequent to Aguilar
the government is advancing religion. It held that the program at
have been modified in two significant respects. First, the
issue (i) does not result in religions indoctrination; (ii) does not
Supreme Court has abandoned the presumption that the
define its recipients by reference to religion or (iii) and it does
placement of public employees on parochial schools grounds
not create an excessive entanglement. This case is important
inevitably results in the impermissible effect of state-sponsored
because it illustrates the Courts evolution of analyses in
indoctrination or constitutes a symbolic union between
determining what the permissible government action with
government and religion. Second, the Supreme Court has
regards to religion is.
departed from the rule that all government aid that directly aids
Mitchell v. Helms
Facts. Chapter 2 Aid to schools can be given to both public and
private schools, with the restriction that the private schools use
the funds for non-religious activities. The Respondent brought
suit alleging that allotment of Chapter 2 funds in Jefferson Parish
Louisiana was unconstitutionally invalid because many of the
schools receiving the funds were parochial in nature and thus
Chapter 2 violated the provisions of the Establishment Clause.
The Fifth Circuit Court of Appeals found the statute to be invalid
and the Supreme Court of the United States (Supreme Court)
granted writs.

Issue. The issue in this case is whether the allotment of state aid
to religious-based schools is necessarily a violation of the
Establishment Clause, when those funds are ear marked for non-
religious purposes.
Held. Reversed.
Based on its holding in Agostini, the Supreme Court held that it is
not facially unconstitutional to allot funds to religious schools,
provided there is no indication that the funds will be used for a
purpose other than that which is intended.
Discussion. This case furthers the Supreme Courts holding in
Agostini, that it is overly burdensome to subject a private school
to Establishment Clause criteria at the expense of the children.
Zelman v. Simmons-Harris
Facts. Ohio started up a Pilot Project Scholarship Program aimed
at any family in an Ohio school district which was under federal
control owing to a court decree. Cleveland City School District had
a dismal performance compared to others. Under the project
certain students in this district could attend participating public
or private schools of their parents choice and receive tuition
scholarship, or remain in their own public school with tutorial aid.
There was no distinction made in participation eligibility between
religious and non-religious schools in the district, nor against
public schools in the adjacent district. The criterion for tuition aid
was the financial status of the parents, who could spend it entirely
at their discretion in enrolling their children in schools of their
choice. The program included the condition that the number of
tutorial fee grants to children who chose to remain in public
school must be equal to the number of tuition aid scholarships. In
1999-2000, 82 percent of participating private schools were
religious, none of the adjacent districts public schools chose to
take part, and 96 percent of the scholarship students were
enrolled in religious schools. 60 percent were from low income
families, at or below the poverty line. Other options under this
program included community schools, which were run by their
own boards but funded by the state, and received double the
funding per student as a private school did; magnet schools, which
are public but stress some specific area of teaching, method of
teaching, or service. Ohio taxpayers (P) sought an injunction
against the program on the ground that the state was encouraging
religious instruction. The district court granted summary
judgment to them, and the verdict was affirmed by the court of
appeals. The Supreme Court reviewed the case.
Issue. Is a school voucher program which allows parents to send
their children to a private school in violation of the Establishment
Clause, where the vast majority of participating private schools
are affiliated to religious groups?
Held. (Rehnquist, C.J.) No. A school voucher program which
allows parents to send their children to a private school is not in
violation of the Establishment Clause, where the vast majority of
participating private schools are affiliated to religious groups. The
purpose of the program in this case is secular, without a doubt. It
is meant to assist poor children in a failing public school to
complete their education. The issue then is whether the program
advances or inhibits religion. The Courts ruling in Mueller v.
Allen, 463 U.S. 388 (1983) and following related cases shows that
a government aid project cannot be easily defeated with reference
to the Establishment Clause provided it gives no deference to
religion, and makes aid available to a class of citizens who by their
own voluntary and independent choice channel that aid to
religious schools. Such is the case in this program which is
therefore supported by the constitution. It favors no religion nor
even religion in the abstract, it is part of a state plan to make
education available to children in a school district where such
opportunity is largely absent, is part of a more general and multi-
pronged action plan, and shows no discrimination towards the
recipients of the educational aid except on financial grounds, in
that poor families receive greater preference for admission and
more aid. It allows all schools irrespective of religious affiliation
to participate, including public schools in the adjacent district. It
not only does not incentivize private schools, but in fact provides
disincentives. A participating private school gets only half the aid
a community school receives, and only a third of that given to
magnet schools. Adjacent public schools get two to three times
this amount. Families which choose to send their children to
private schools too have disincentives in that they have to
contribute towards the school tuition, whereas in public,
community or magnet schools tuition is completely free. This is
therefore in no sense a government endorsement of religion.
Another important point is that the program gives ample
opportunity for parents to choose secular educational options if
preferred, among the various alternatives offered such as
continuing to send their child to the same public school, using
tutorial aid paid for by the program in public school, obtaining a
scholarship to attend a religious private school, use the same
scholarship to attend a non-religious school, enroll in a
community college or in a magnet school. Thus the Establishment
Clause is not violated in the sense that Ohio in no sense promotes
or coerces the parents to send children to religious schools. The
other argument of the taxpayers that 96 percent of the scholarship
recipients were in religious schools, which violates the
constitution, is already addressed in Mueller. Just because most
private schools in a certain area or at a certain time are religious,
or why this is so, or most scholarship recipients choose to enroll
at a religious school is not the touchstone to decide on the
constitutionality of a school district program. Thus the Ohio
program is neutral to religion, uses only financial need and
geographical location with respect to a particular school district
as criteria, and enables true and full choice to the beneficiaries of
such aid as to the options available to utilize the aid. It is thus a
program which protects true private choice. The verdict is
reversed.

Discussion. The traditional stand of the Court has been that a law
is neutral with respect to its primary effect if the religious
consequence is non-immediate, incidental and indirect. The
demography of the school district encouraged enrollment in
religious schools under a program of this design, and so the
religious impact was neither a byproduct nor remote, so the
dissent suggests. There are unanswered questions such as
whether there is an existing provision in the constitution to
prevent discrimination by schools receiving aid, by including such
conditions in the voucher programs, and whether the state laws
which specifically prevent the use of aid for religious schools are
themselves violations of the constitution.
Allegheny v. American Civil Liberties Union

Facts: Two public-sponsored holiday displays in Pittsburgh,

Pennsylvania, were challenged by the American Civil Liberties
Union. The first display involved a Christian nativity scene inside
the Allegheny County Courthouse. The second display was a
large Chanukah menorah, erected each year by the Chabad
Jewish organization, outside the City-County building. The ACLU
claimed the displays constituted state endorsement of religion.
This case was decided together with Chabad v. ACLU and City of
Pittsburgh v. ACLU of Greater Pittsburgh.
Question: Did the public displays violate the Establishment
Clause of the First Amendment?
Ruling: The Court held that the crche inside the courthouse
unmistakably endorsed Christianity in violation of the
Establishment Clause. By prominently displaying the words
"Glory to God for the birth of Jesus Christ," the county sent a
clear message that it supported and promoted Christian
orthodoxy. The Court also held, however, that not all religious
celebrations on government property violated the Establishment
Clause. Six of the justices concluded that the display involving the
menorah was constitutionally legitimate given its "particular
physical setting."
CSRAB v. Pinette
Facts. Capital Square (the Square) is a state-owned plaza
surrounding the Statehouse in Columbus, Ohio. Over time, the
Square came to be known as a public forum, where speakers
were allowed to congregate and gatherings held. A policy
developed wherein a variety of unattended displays were
allowed. Generally, during the holidays the state would light a
tree in the Square and a local rabbi would erect a menorah. This
case arose from an application to the Petitioner from the
Respondents to place a cross on the square during the Christmas
season. The Board determined not to allow the cross, because it
could be associated with the nearby capital and thereby could be
considered an impermissible sanction of religion. The District
Court and Court of Appeals granted judgment in favor of the
Respondents, the Petitioner Appealed.

Issue. The issue considered in this case is whether a State

violates the Establishment Clause of the United States
Constitution (Constitution) when, pursuant to a neutral state
policy, it permits a private party to display an unattended
religious symbol in a traditional public forum.
Held. Affirmed.
Because the Square rose to the level of a public forum, the State
was disallowed from banning private religious speech on the
grounds that it may be misperceived as State-Sanctioned.
Discussion. This case does not serve to abrogate the
Establishment Clause, but it does hold that it may be secondary
to the First Amendment rights of a group seeking to exercise its
own expression in a public forum.
Islamic DaWah Council v. Executive Secretary
Facts: Petitioner is a non-governmental organization that
extends voluntary services to the Filipino people, especially to
Muslim Communities. Petitioner began to issue, for a fee, halal
certifications to qualified products and food manufacturers on
account of the actual need to certify food products as halal and
also due to halal food producers' request. Subsequently,
Executive Order (EO) 46 was issued creating the Philippine Halal
Certification Scheme and designating respondent Office of
Muslim Affairs (OMA) to oversee its implementation. In this
petition for prohibition, petitioner alleged, among others, that
the subject EO violates the constitutional provision on the
separation of Church and State.
In granting the petition, the Supreme Court ruled that
freedom of religion was accorded preferred status by the
framers of the fundamental law and it has consistently affirmed
this preferred status. Without doubt, classifying a food product
as halal is a religious function because the standards used are
drawn from the Qur'an and Islamic beliefs. By giving the OMA the
exclusive power to classify food products as halal, EO 46
encroached on the religious freedom of Muslim organizations
like herein petitioner to interpret for Filipino Muslims what food
products are fit for Muslim consumption. Also, by arrogating to
itself the task of issuing halal certifications, the State has in effect
forced Muslims to accept its own interpretation of the Qur'an
and Sunnah on halal food.
The Court further ruled that only the prevention of an
immediate and grave danger to the security and welfare of the
community can justify the infringement of religious freedom. In
the case at bar, the Court found no compelling justification for
the government to deprive Muslim organizations, like herein
petitioner, of their religious right to classify a product as halal,
even on the premise that the health of Muslim Filipinos can be
effectively protected by assigning to OMA the exclusive power to
issue halal certificates.
Issue: Whether or not Executive Order 46 violates the
constitutional provision on the separation of Church and State.
Held: No. In granting the petition, the Supreme Court ruled that
freedom of religion was accorded preferred status by the
framers of the fundamental law and it has consistently affirmed
this preferred status. Without doubt, classifying a food product
as halal is a religious function because the standards used are
drawn from the Qur'an and Islamic beliefs. By giving the OMA the
exclusive power to classify food products as halal, Executive
Order 46 encroached on the religious freedom of Muslim
organizations like herein petitioner to interpret for Filipino
Muslims what food products are fit for Muslim consumption.
Also, by arrogating to itself the task of issuing halal certifications,
the State has in effect forced Muslims to accept its own
interpretation of the Qur'an and Sunnah on halal food.
The Court further ruled that only the prevention of an
immediate and grave danger to the security and welfare of the
community can justify the infringement of religious freedom. In
the case at bar, the Court found no compelling justification for
the government to deprive Muslim organizations, like herein
petitioner, of their religious right to classify a product as halal,
even on the premise that the health of Muslim Filipinos can be
effectively protected by assigning to OMA the exclusive power to
issue halal certificates.
Only the prevention of an immediate and grave danger to
the security and welfare of the community can justify the
infringement of religious freedom. If the government fails to
show the seriousness and immediacy of the threat, State
intrusion is constitutionally unacceptable. In a society with a
democratic framework like ours, the State must minimize its
interference with the affairs of its citizens and instead allow
them to exercise reasonable freedom of personal and religious
activity. In the case at bar, we find no compelling justification for
the government to deprive Muslim organizations, like herein
petitioner, of their religious right to classify a product as halal,
even on the premise that the health of Muslim Filipinos can be
effectively protected by assigning to OMA the exclusive power to
issue halal certifications. The protection and promotion of the
Muslim Filipinos' right to health are already provided for in
existing laws and ministered to by government agencies charged
with ensuring that food products released in the market are fit
for human consumption, properly labeled and safe. Unlike EO 46,
these laws do not encroach on the religious freedom of Muslims.