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the relationship of government and religion

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our currency says "In God We Trust"

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millions of school children recite "One Nation Under God" in the Pledge of Allegiance everyday

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nativity scenes are displayed on state property

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high schools have prayers at sports events

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Establishment Clause

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"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

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1. Congress cannot set up an official religion for the United States

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2. Congress cannot interfere with state-established religions

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at the time the Bill of Rights was written, several states did have official religions

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Georgia, South Carolina - Congregational

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Maryland - Roman Catholic

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Connecticut, Massachusetts - Church of England

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so this clause was original designed to protect state established religions from federal interference

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yet through the 14th Amendment, the Establishment Clause becomes something that prohibits them

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applies not just to Congress but to all federal actors

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because of the 14th Amendment, not just to the federal government but to the states as well

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what does the Establishment Clause mean

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two principles that most everyone agrees on

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1. no government can designate a religion as the official state religion

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2. no government can force people to engage in religious exercises or to profess religious beliefs

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Sandra Day O'Connor

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government cannot endorse religion

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government cannot do anything to suggest that it officially supports one religion, or religion in general

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government cannot suggest that religious belief is better than non-belief

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using these principles, the Supreme Court has

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forbidden public prayer in schools, graduations, at sports event

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forbidden some religious displays

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can't put the Ten Commandments on school walls

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can't erect crosses in front of government buildings

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refers to government endorsement

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individuals are free to express themselves

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e.g. a government could allow a private group to put up a religious display in front of city hall

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it's only about endorsing religion

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e.g. a government could put a display of commandments from several religions

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regarding Christmass display

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Christmas has both a religious and secular component

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cannot put up only a nativity scene

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can put up Santa Claus and reindeer

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if these are all put up together, then it could pass as secular

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like the Ten Commandments surrounded by other sources of law

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difficult lines to draw

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in the case of the high school football game

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it was students who were leading prayers

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the school was only endorsing that students "get up and say what they thought was appropriate," which for some students, happened to be prayer, which came under the protection of free speech

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in the case of the nativity scene

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even though Christmas has become quite secular, it is not really a time that all people come together to celebrate the birth of the baby Jesus

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cases that look easy but in which the court is unwilling to decide

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putting "In God We Trust" on the currency

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describing the United States as "one nation under God" in the Pledge of Allegiance

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looks clearly like an endorsement of religion

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but the Supreme Court is not very likely to say that those things are unconstitutional

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the endorsement clause creates a number of hard cases

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peoples' lives used to take place mostly in the private sphere

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government's scope has increased

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today they take place in many government institutions

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e.g. schools

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becoming harder to manage the tension between keeping the government out of religion and allowing individuals to express their religious beliefs and to mark significant moments in their lives with significant observances

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e.g. high school graduation

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if was one issue when public schools are relatively rare, and another as now when 90% of students are in public schools

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government funding to private schools

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generally ruled that neutrality is allowed

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government can provide support to all schools on equal terms

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can't treat religious schools better but it doesn't have to treat them worse either

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government can provide anything which contributes to secular instruction

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computers

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lunches

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buses

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for awhile, the Supreme Court followed a rule that government funds could never be used for religious instruction

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it no long follows this in quite the same way

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the government can pay tuition at religious schools

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it's allowed as long as the tuition voucher program is neutral

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then it's the parents' choice

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in practice, however, since almost all of the available private schools are religious, the large majority of government money had to go to religious schools

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Zelman v. Simmons-Harris, 2002

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Does Ohio's school voucher program violate the Establishment Clause?

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"No. In a 5-4 opinion delivered by Chief Justice William H. Rehnquist, the Court held that the program does not violate the Establishment Clause. The Court reasoned that, because Ohio's program is part of Ohio's general undertaking to provide educational opportunities to children, government aid reaches religious institutions only by way of the deliberate choices of numerous individual recipients and the incidental advancement of a religious mission, or any perceived endorsement, is reasonably attributable to the individual aid recipients not the government. Chief Justice Rehnquist wrote that the "Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice."