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Separation of Church and State
U.S. Supreme Court
Pleasant Grove City v. Summum Pleasant Grove City, Utah, refused a request by Summum, a religious organization, to place their Seven Aphorisms monument next to an existing Ten Commandments monument in a public park. The 10th Circuit ruled in favor of Summum, on free speech grounds, holding that the park was an open forum that “the city cannot close...by fiat.” Because of 10th Circuit precedent, no Establishment Clause claim was raised by Summum. ADL joined in filing an amicus brief in the U.S. Supreme Court which argued (a) the free-speech analysis is improper because permanent monuments are government speech and (b) the Establishment Clause provides the proper framework for this case, regardless of 10th Circuit jurisprudence.
PDF 191 kb
Hein v Religious Freedom Foundation (2007)
The Freedom from Religion Foundation sued the then-Director of the White House Office for Faith-Based and Community Initiatives, alleging that his offices (and other similar Federal faith-based offices) were spending federal money to hold conferences where government officials gave speeches that unconstitutionally promoted and endorsed religion. The Supreme Court granted asked whether taxpayers have standing to sue under the Establishment Clause for Executive Branch actions where (a) the plaintiff does not challenge a particular act of Congress; (b) the challenged programs and actions are financed only indirectly through general appropriations; and (c) no funds are disbursed to any entities or individuals outside the government. ADL joined several other organizations in filing an amicus curiae brief that urges the Court to reject suggestions that this case be used to overrule the landmark case of Flast v. Cohen (1968), which secured the important right of “taxpayer standing.”
PDF 412 kb
Van Orden v. Perry
ADL filed an amicus brief in two Ten Commandments cases simultaneously before the Court -- Van Orden v. Perry and McCreary County v. ACLU of Kentucky. The League's brief, submitted together with Professor Philip Cunningham, Executive Director of the Center for Christian-Jewish Learning at Boston College, explained the quintessentially religious nature of the Decalogue, and the different meanings it has within the Jewish and Christian traditions. The brief contended that the Ten Commandments cannot be secularized, and that the government should not sponsor public displays of them. While the Court did not address this argument, it nevertheless invalidated the displays in the McCreary case. The Court found that these courthouse displays of the Kings James Bible version of the Ten Commandments had an overtly religious purpose in violation of First Amendment's Establishment Clause. Finding no similar religious purpose in Van Orden, the Court upheld the constitutionality of a large granite monument of the Ten Commandments on the Texas state capitol grounds.
PDF 88 kb
Elk Grove School District v. Newdow.
The case challenged the constitutionality of a school district policy which mandates daily teacher-led recitation of the Pledge of Allegiance by elementary school students in order to comply with a California patriotic exercise requirement. As amicus curiae, ADL argued that daily recitation of the Pledge, which includes the phrase "under God," may run counter to students' religious beliefs, consciences and upbringings. It violates the U.S. Constitution's religion clauses because government may not impose religious beliefs on its citizens, especially in the public elementary school setting. The Court did not reach the case's constitutional issues because it ruled that Michael Newdow did not have a legal right to bring the lawsuit on behalf of his daughter, an Elk Grove School District elementary school student. PDF 88 kb
Zelman v. Harris-Simmons (2002)
This case challenged the constitutionality of an Ohio school vouchers program that pays the tuition of children primarily attending private religious schools. ADL's brief argued that "school choice" programs, such as this one which essentially forces parents to choose between failing public schools and religious private schools, violates church-state separation and fails to recognize what ADL's hard won experience has taught it: the separation of church and state has advanced the cause of religious freedom in America. Unfortunately, the Court found the program to be a constitutional "true private choice" program in which private citizens direct government aid to religious schools as result of their own genuine and independent private choices. It explained that any incidental advancement of a religious mission or the perceived endorsement of a religious message is attributable to the aid recipients, not the government.
PDF 55 kb
Mitchell v. Helms (530 U.S. 793 (2000)):
This case questioned the constitutionality of government aid in the form of instructional materials and equipment to religious schools. In its brief, ADL argued that since such equipment could easily be diverted to religious uses, the aid constituted government funding of religious activities and directly violated the Establishment Clause. Unfortunately, the Court held that this type of aid was constitutional because it did not have the primary effect of advancing religion.
PDF 2,199 kb
Santa Fe Independent School District v. Doe (530 U.S. 290 (2000)):
This case, which questioned the constitutionality of school-sponsored prayer at public high school football games, is one of the Supreme Court's most recent interpretations of the issue of prayer in public schools. As amicus curiae, ADL successfully argued that the school's prayer policy constituted an official endorsement of religion and, as such, violated the Establishment Clause. PDF 2,427 kb
Rosenberger v. Rector and Visitors of the University of Virginia (515 U.S. 819 (1995))
In a 5-4 decision, the Court held that a state university's refusal to fund the printing of a religious student newspaper when it funded other student publications was a violation of the First Amendment free speech guarantee and was not excused by the need to comply with the Establishment Clause. ADL signed onto a brief with two other religious freedom organizations. In the brief, the Court was urged not to allow the school to use its funding for a religious publication. ADL argued that the Establishment Clause has never allowed governments to fund religious activities and this should be no exception. PDF 92 kb
Lee v. Weisman (505 U.S. 577 (1992))
In a 5-4 decision, the Court held that prayer at a public high school graduation was a violation of the Establishment Clause because it puts coercive pressure on students to participate in a religious activity. ADL signed onto a brief with nine other religious liberty organizations. The brief argued that prayer in schools is a violation of the Establishment Clause. The brief further urged the Court to reject petitioner's proposed narrow definition of coercion and accept a broad view of coercion that includes violations of government neutrality toward religion.
PDF 139 kb
County of Allegheny v. ACLU (492 U.S. 573 (1989)):
This case the questioned the constitutionality of Christmas Nativity Scenes and Chanukah Menorahs in buildings that house government offices. As amicus curiae, ADL argued that both types of displays constituted an official endorsement of religion and, as such, violated the Establishment Clause. The Court agreed that the Nativity Scene was unconstitutional, but held that the Menorah did not violate the wall between church and state because it was not a religious symbol. PDF 3,677 kb
Lynch v. Donnelly (465 U.S. 668 (1984))
The court held in a 5-4 decision that the city of Pawtucket, Rhode Island's display of a Nativity scene and crčche in a city park was not a violation of the First Amendment's Establishment Clause. ADL and the American Jewish Congress submitted a brief and argued that the city's public display was not only an establishment of religion, but also an establishment of a Christian religion, and thus alienated Jews. PDF 97 kb
Marsh v. Chambers (463 U.S. 783 (1983))
ADL filed a brief in this case and argued that Nebraska's retention of a chaplain of one denomination for an extended period of time, and its expenditure of funds during that time to support the daily recitation of prayers, was a violation of the Establishment Clause and should not be permitted. In a 6-3 decision, the Court held that it was not a violation of the Establishment Clause to begin the Nebraska Legislature sessions with a prayer by a chaplain paid with public funds. The Court stated that the use of prayer was embedded in the nation's history and was consistent with the framers' intent. The Court emphasized that the prayer was constitutional because it was non-sectarian. The Marsh case represents the outer limits of constitutional legislative prayer. PDF 55 kb
Widmar v. Vincent (454 U.S. 263 (1981))
The case concerned the constitutionality of a public university's policy that allowed a religious student group to hold meetings on campus. In an 8-1 decision, the court held that the university's exclusion of the group violated the First Amendment because the university was discriminating against the religious group's views. ADL filed a brief which argued that the university did not violate the student group's Free Exercise right because the group could hold meetings in a nearby building. Secondly, the brief argued that the Free Exercise claim was outweighed by ensuring that the Establishment Clause was not violated. PDF 70 kb
Committee for Public Education and Religious Liberty v. Nyquist (1973):
This case questioned the constitutionality of a state law that bestowed tax benefits upon parents who made tuition payments to private schools, the majority of which were religiously affiliated. As amicus curiae, ADL successfully argued that such a law constituted government funding of religious activities and, as a result, violated the Establishment Clause.
PDF 1,557 kb
Sloan v. Lemon (413 U.S. 825 (1973)):
The question at issue in this case was whether or not a state law that partially reimbursed parents for tuition payments made to private schools, the majority of which were religiously affiliated, was constitutional. In its brief, ADL successfully maintained that such a law constituted government funding of religious activities and, as a result, violated the Establishment Clause. PDF 1,844 kb
Lemon v. Kurtzman (403 U.S. 602 (1971)):
The question at issue in this case was whether or not a state law that reimbursed private schools (the majority of which were religiously affiliated) for the cost of teacher's salaries and teaching materials was constitutional. As amicus curiae, ADL successfully maintained that such a law constituted government funding of religious activities and, as a result, directly violated the Establishment Clause. Its participation in the case announced the famous "Lemon test," which is still used today to determine which activities breach the church-state boundary. PDF 2,896 kb
Engel v. Vitale (370 U.S. 421 (1962))
This case, one of the first to involve the issue
of school prayer, questioned the constitutionality of including school-sponsored prayer as part of the exercises that begin each public school day. As amicus curiae, ADL successfully argued that the school's prayer policy constituted an official endorsement of religion and, as such, violated the Establishment Clause. PDF 1,369 kb
U.S. Courts of Appeals
Cooper v United States Postal Service (Second Circuit 2008). The United States Postal Service contracted with a church for the operation of a so-called "contract postal unit." The church, however, used the contract postal unit to deliver its proselytizing religious messages. ADL urged the Untied States Court of Appeals for the Second Circuit Court to affirm the judgment of the district court, finding an Establishment clause violation. ADL argued that the church functioned as a state actor when operating the contract postal unit and that the religious activities of the Church (while delivering postal services) impermissibly intertwines the government and religion. ADL also argued that even if the church wasn’t a state actor, the requirement that the government’s customers – postal patrons – endure church proselytizing and messages was an independent violation of the Establishment clause. PDF 166 kb
American Atheists v Duncan (No. 08-4061).
ADL urged the 10th Circuit to hold unconstitutional the placement of crosses along highways by the Utah Highway Patrol Association to memorialize officers who died in the line of duty. The League’s amicus brief in American Atheists v. Duncan challenges a lower court decision which permitted the erection of these crosses on the basis that the cross is not a religious symbol, but rather a secular symbol of death, and thus the erection of crosses in this case does not breach the Establishment Clause. The brief argued that indeed the cross is a long-standing religious symbol, cannot be interpreted as a secular symbol, and that the State’s displays in this case show a preference by the government of one religion over another, in violation of the First Amendment. PDF 225 kb
Busch v Marple (3rd Cir 2007).
This case focused on the constitutional different between teaching about religion and in-class religious indoctrination. The Marple Newtown School District had a program that was designed to involve parents in their children’s kindergarten classes. One parent sought to take advantage of this program by reading proselytizing Bible verses to her child’s classes. The school district prohibited this attempt to inject religious indoctrination into the classroom, and won the resulting lawsuit filed against it in the District Court. When the parent appealed, ADL filed a brief in the United States Court of Appeals for the Third Circuit, arguing that there is a fundamental and constitutionally required difference between the activities that were permitted at various times in the kindergarten classroom – for example, “show and tell” explaining the significance of a dreidel in a neutral manner – and reading directly from Holy Scripture. In short, ADL argued that that a line can and must be drawn that protects free and open discussion of cultural and religious differences but does not permit proselytizing in the public schools.
PDF 210 kb
Doe v Tangipahoa Parish School District (5th Cir en banc).
The U.S. Fifth Circuit Court of Appeals granted an en banc rehearing in this case. The facts of this case are simple: presented with a resolution to limit its opening prayers to a brief nonsectarian, non-proselytizing invocation, the Tangipahoa Parish School Board effectively resolved, instead, to begin its meetings with definitively sectarian prayer by unanimously rejecting the resolution. A panel of the Fifth Circuit splintered, with three separate opinions filed. In essence, members of the panel could not agree on whether Lemon v Kurtzman (1971) or Marsh v Chambers (1983) (legislative prayer) governed invocations at school board meetings. Arguing that Marsh should not apply, ADL’s brief argued that Board’s meetings are different than other legislative meetings: they constitute an integral part of the school system; are open to the public, including students, parents, and teachers; are conducted on school property; and set policy for all of the schools in the system.
PDF 92 kb
Staley v Harris County (5th Cir en banc 2007).
In 1956, at the urging of the Star of Hope Mission, a Christian charity,,a memorial to a Mission benefactor was erected outside the Houston County Courthouse. The Monument showcased the Bible because the Mission sought not only to honor the benefactor, but also to promote Christianity, and the display was unveiled in a religious ceremony attended by the Harris County Commissioners Court. In 1995, State Judge John Devine fulfilled a campaign promise to restore Christianity to government by restoring and enhancing the monument. The renewed memorial was once again dedicated in a religious ceremony. On the basis of these facts, the district court concluded that the display was unconstitutional because it had been erected and refurbished with a predominantly religious purpose and in fact had had the intended religious effect. A panel of the Fifth Circuit agreed, but the court granted rehearing en banc. ADL filed amicus briefs in connection with both the original and the en banc appeals, arguing that recent Supreme Court precedent required an affirmance.
PDF 114 kb
Christian Legal Society v Hastings Law School (9th Cir. 2006).
In a case pending before the U.S. Court of Appeals for the Ninth Circuit, ADL has filed an amicus brief arguing that a school-recognized Christian law student group at publicly-funded university should not, because of its members’ religious beliefs, be permitted to deny gays and lesbians membership or officer positions in their club. PDF 1000 kb
Americans United v Prison Fellowship Ministries (8th Cir 2006).
The State of Iowa sought to reduce prisoner recidivism by encouraging inmates to participate in a prison-based program that involved religious instruction and proselytizing. In exchange for participating in this program, prisoners would receive special privileges, including better housing and unique opportunities to earn parole faster. A federal district court concluded that this program was unlawful as it ‘intended to coerce or persuade conversion to Christianity.’ The group sponsoring the program, Prison Fellowship Ministries, appealed to the United States Court of Appeals for the Eighth Circuit. At the appeals court, ADL filed an amicus brief that argued that Iowa’s direct subsidy of proselytizing in a prison was an unlawful endorsement of one religion by Iowa, coerced religious worship and participation, and discriminated against those who wish to follow other faiths (or no faith at all). PDF 193 kb
Marcus Borden v. East Brunswick School District (3rd Cir. 2006) The issue before the Third Circuit Court of Appeals is whether the bowing of one’s head and “taking a knee” by a high school football coach during player-initiated pre-game prayers constitutes a violation of the Establishment Clause. The case was initiated when the East Brunswick High School football coach, Marcus Borden, was ordered by the East Brunswick School District (EBSD) not to bow his head or “take a knee” with his players during pre-game prayers. The school received complaints about the activity which took place out of public view in the locker room and cafeteria. The EBSD concluded that the coach’s conduct constituted participation in the prayers in which the students were engaged. As a result, the School District issued a directive to the coach prohibiting him from participating, or his behavior would be considered insubordination and the coach filed suit. The District Court held that the directives issued by the school were overbroad and vague and violated his First and Fourteenth Amendment rights to free speech, free association and academic freedom and the NJ constitutional rights to liberty and free speech. The School District appealed to the Third Circuit.
PDF 1 mb
Hinrichs v. Bosma (7th Cir. 2006) ADL submitted an
amicus brief to the Seventh Circuit Court of Appeals
in support of the District Court’s decision
prohibiting the Indiana House of Representatives from
using sectarian prayers at the opening of each
legislative session. The District Court found that
religious clerics delivering invocations had
“repeatedly and consistently” advanced Christian
beliefs in violation of the Establishment Clause
through the offering of prayers “in the name of Jesus,
Jesus Christ, the Savior, and/or the Son.” ADL’s brief
argued, among other things, that although the use of
religious invocations to begin legislative sessions is
both constitutional and in accord with longstanding
national practice, such prayer must be non-sectarian
in nature. The brief argued that the notion of
non-sectarian prayer has developed over time to
reflect our nation’s increasing religious diversity
and our history of religious inclusiveness. This
brief was filed jointly with the American Jewish
Committee and the Indianapolis Jewish Community
Relations Council.
PDF 176 kb
Paulson v. City of San Diego (9th Cir. 2006) This case concerns the City of San Diego and a 17 year old complicated legal battle to preserve a 43-foot tall Latin Cross on Mt. Soledad, city-owned property, notwithstanding the clear language of the United States and California Constitutions and multiple legal precedents. The courts that have reviewed this matter have consistently held that the City’s conduct has communicated a message of favoritism and endorsement of the majority faith, a message which is inconsistent with the requirement of government neutrality in religious affairs. ADL filed a brief that argues, among other things, that the “public interest” is best served by the Court bringing finality to this matter, thereby reasserting the fundamental principle that we are a nation of laws even in the face of outcomes not favored by those in the majority. PDF 339 kb
Teen Ranch v. Udow (2006) ADL filed a “friend of court” brief in the Sixth Circuit Court of Appeals in support of the State of the Michigan’s refusal to fund the religious indoctrination of children who have been abused or abandoned. Teen Ranch, a faith-based organization, is appealing the district court’s decision upholding the State’s refusal to fund its program. Teen Ranch’s stated mission is to change the lives of children by “developing a closer relationship with Jesus Christ.” It advances this mission by encouraging children to pray at each meal, to make various devotions during the day, and to attend church services. ADL’s brief argues that this funding violates the Establishment Clause and is coercive to children. In addition, the Teen Ranch program underscores the dangers to religious freedom posed by our nation’s charitable choice laws which allow houses of worship and other religious institutions to compete on equal terms with religious-affiliated and secular institutions for public social service dollars. PDF 632 kb
Community House, Inc., et al. v. City of Boise, Idaho, et al. (2006). ADL submitted an amicus brief in the Ninth Circuit Court of Appeals defending the lower court's decision to impose a limited and intermediate preliminary injunction that prohibits the City of Boise from leasing an emergency homeless shelter to a religious sect if the religious sect continues to use the shelter for the impermissible purpose of indoctrinating the facility's beneficiaries. The lower court concluded that there are "serious questions" as to whether the City's lessee, the Boise Rescue Mission, Inc., has been requiring attendance at religious meetings as a condition of providing food and shelter at the facility. ADL filed the brief jointly with Americans United for Separation of Church and State, arguing that the City's lease violates the Establishment Clause under both the Lemon test and the endorsement test.PDF 943kb
Doe v. Tangipahoa Parish School Board (2005) - ADL submitted a "friend of the court brief" to the New Orleans-based U.S. Court of Appeals for the Fifth Circuit defending a lower court decision that found sectarian invocations at a local school board in violation of the First Amendment's Establishment Clause. To justify this practice, the Board sought to invoke a narrow exception to the Establishment Clause which would permit non-sectarian prayer at legislative and other deliberative bodies. ADL's brief argues that this legislative prayer exception is inapplicable to school boards, and the prayers are unconstitutional under well-settled Establishment Clause standards. In the public school context, the Supreme Court has applied heightened protections against state-sponsored religious activity. These same protections apply to school boards because they are inextricably intertwined with the public school system. For this reason, neither the Supreme Court nor other federal courts have extended the legislative prayer exception to school boards - and the Fifth Circuit should follow these rulings. The Fifth Circuit granted rehearing en banc; please see above. PDF 1,168kb
Cobb County v. Selman (2005)
The Anti-Defamation League recently submitted a "friend of the court" legal brief to the Atlanta-based U.S. Court of Appeals for the 11th Circuit defending a lower court decision that found a school district's placement of an anti-evolution sticker within high school science textbooks in violation of the First Amendment's Establishment Clause. The court specifically ruled that the sticker had the unconstitutional effect of advancing religion. PDF 2,420kb
Skoros v. City of New York, et al. (Second Circuit, 2006) At issue in the case was the constitutionality of an inclusive December Holiday display policy issued by the City of New York Department of Education. In an effort to recognize the City’s “diverse multi-cultural community” while complying with constitutionally-mandated separation of church and state, the Department adopted a secular holiday display policy which permitted symbols from Christmas, Ramadan and Hanukkah. Although the policy permitted numerous secular Christmas symbols, a parent alleged that it unconstitutionally disfavored Christianity because her request for a display to include a crčche, an overtly religious symbol, was denied. The Court found the policy constitutional under the First Amendment’s Establishment Clause. By permitting secular displays inclusive of symbols from all traditions, the policy did not unconstitutionally endorse a particular faith or religion generally. Rather, it had a secular purpose and effect of promoting pluralism and tolerance. Furthermore, the policy’s limitation on crčches appropriately ensured the City’s compliance with the Establishment Clause. PDF 2,420kb
Corporation for National and Community Service, et. al v. American Jewish Congress (D.C. Circuit 2005) - The case challenged the constitutionality of the AmeriCorps Education Award Program administered by the federal Corporation for National and Community Service. This Program places recent college graduates in Corporation-approved positions as teachers in private schools, including sectarian ones that engage in religious instruction of students. The Corporation provides the teachers with an education stipend for completion of a term of service, as well as paying participating schools an unrestricted administration fee for each. ADL's brief argued that the program violated the Establishment Clause because it is not a "true private choice program" and the government aid is used for core religious activities. Unfortunately, the Court found the Americorps Program constitutional. The Court determined that it is a true private choice program in which religious activity is permissible. PDF 183kb
Freethought Society of Greater Philadelphia v. Chester County (3rd Circuit - 2003). This case challenged the constitutionality of a bronze Ten Commandments plaque, containing a Protestant version of the Commandments, standing alone at the former entrance of the county courthouse since 1920. ADL's brief argued that the display unconstitutionality endorsed religion by conveying a religious message in violation of the First Amendment's Establishment Clause. Unfortunately, the Court found the display constitutional. While it noted that the Ten Commandments are "undeniably religious" the Court determined that the plaque's age and placement on a building designated as a national historic place conveyed a desire by the county to preserve a longstanding fixture on a historic monument. Thus, a reasonable observer would not view the plaque as an endorsement of religion. PDF 76kb
John Doe v. The School District of the City of Norfolk in the County of Madison (8th Cir. - 2003). The school district has an informal policy of permitting school board members who are parents of graduating seniors to make an address at their children's graduation ceremony. Invoking this policy, a school board member recited the Lord's Prayer at graduation. In its brief, ADL argued that the school board member's conduct was unconstitutional because he acted in an official capacity to advance religion and coerce religious activity in violation of the First Amendment's Establishment Clause. Unfortunately, the Court found no constitutional violation. It determined that in reciting the prayer the school board member acted as a private citizen, and therefore the prayer was constitutionally protected private free speech. PDF 64kb
State Courts
Condemnation Proceeding In Rem by the Redevelopment Authority of the City of Philadelphia (Pennsylvania Supreme Court 2006)
The Philadelphia Redevelopment Authority (PRA) instituted condemnation proceedings to acquire blighted property in North Philadelphia. The property was to be turned over to the Hope Partnership, a venture of the Society of the Holy Child Jesus and the Sisters of Mercy, for the construction and operation of a private school. The intermediate appellate court reversed the trial court and found "unequivocally" that the taking contravened the Establishment Clause. It held that the authority's primary purpose in the taking was to acquire land for a religious organization; that the acquisition had a primarily religious effect because it aided the organization's mission to provide faith-based educational services; and that because the Authority worked with the Hope Partnership to effectuate the taking, there was an entanglement between church and state.
PDF 948 kb
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