United States Constitution – 1st Amendment
Establishment Clause
Lemon Test: 1. Secular Purpose + 2. Primary Effect can’t enhance/inhibit religion
3. No excessive entanglement
School Prayer
No:
Prayer initiated by teacher/administrator with a “captive audience”
No:
Prayer at graduation (although estimate is that close to 40% of schools still do)
Probably: Student speaker express faith at graduation (without prayer)
No:
Student lead prayer over loudspeaker at football game
Yes:
Student lead prayer with teammates who voluntarily pray before/after game
Other Government Prayer
Yes:
Prayer before City Council Meeting (Following tradition of Congress).
Prayer doesn’t have to be non-sectarian. Can say “Jesus Christ, etc.”
Yes:
Prayer before IN Legislature each day, doesn’t have to be “non-sectarian.”
Probably: Prayer before School Board Meeting.
Teachers Teaching Religion
*See Indiana Protected Topics Below under IN Laws
Yes:
Study Bible if done objectively (world history, source of literary, etc.)
No:
School Board requiring Creationism
No:
School Board prohibiting evolution
Probably: Provide scientific critiques of prevailing scientific theories (Creationism)
Religious Displays (Christmas Trees, Nativity Scenes, Crosses)
Yes:
Nativity Scene, Santa House, and “Season’s Greeting” when placed together
Yes:
When all faiths are allowed to place items on land
Yes:
10 Commandments monument at State Capitol
Yes:
Govn’t sold patch of land with Cross to private party to get around Est. Clause
Yes:
Minora and Christmas tree
No:
Nativity by itself with words “Glory to God for the Birth of Jesus Christ”
Student Clubs and Teacher Participation
Yes:
Allowed to have religious student clubs (not allowed to prohibit if other clubs)
No:
Teacher involvement on campus, during school hours other than supervise
Yes:
Teacher involvement on campus, after school hours
Yes:
Teacher involvement off campus, after school hours (no restrictions at all)
Moment of Silence
Yes:
Moment of silence (IN law actually requires you to have one)
No:
Require student to “pray” during that time
Other Situations:
No:
School allowing Gideons to hand out Bibles
Yes:
Briefly answer student questions in front of class, when saying “I believe.”
If only talking to that particular student, you may answer in more depth,
because other students are not held captive to hearing your answer. Then later
outside of school hours/premises, answer completely freely because not acting
as the State and so Establishment Clause is not a concern any longer. Instead,
you are using your right to free speech and right to free exercise of your
religion. The older the child, the more latitude you have at any time.
Yes:
Provide state funds to religious groups (work or school), if provided to nonreligious groups also. State may not withhold funds simply because religious.
Probably: Sacred Concerts. No Supreme Court case yet, but the 5th Circuit upheld when
performed at graduation and at church services.
No:
Private religious teachers receiving state salary boosters
Yes:
Bus students to voluntary monthly religious education
Probably Not: Teacher silently reading/keeping Bible at desk (10th Cir.)
Yes:
“Under God” or “In God We Trust”
Yes:
No:
Voucher send State $ to private school if: Neutral + $ to parents + Free Choice
City gives Church veto authority over zoning restrictions
Free Exercise Clause
Purposeful + Amish Schools + Sabbath + Federal Employment + Land Use =
Strict Scrutiny
Laws of General Applicability
= Intermediate Scrutiny
Situations
Yes:
Amish exempted from attending school after certain age
Yes:
Exempted from working on the Sabbath (unless undue burden on employer)
Yes:
Students praying in school (unless disruptive)
Yes:
Employees sending communications to other co-workers about religious events
Unless causing undue burden on employer, harassment, etc.
Yes:
Religious groups exempt from land use regulations that interfere with religion
No:
Exempt from law prohibiting doing drugs because used for “worship”
Free Speech Clause
Public Forum (school after hours) = Strict Scrutiny (Content); Intermediate (Time/Place/Manner)
Non-Public Forum (school during school hours = Rational Basis + Viewpoint Neutral
Government Employee Situations
Yes:
State can regulate employees speech in order to perform functions
Probably Not: State can’t restrict religious displays outside workspace if not others
Yes:
Employee expressing religious beliefs, promoting events to other employees
No:
Employee intimidating/harassing others at work with religious beliefs
Yes:
Employer expressing religious beliefs to employees
Maybe: Employer forcing employees to listen to beliefs (Establishment Clause)
Probably No: Employee expressing religious beliefs to non-coworkers
Yes:
Teacher wearing cross, Jewish star, Catholic Nun outfit
No:
Teacher wearing “Jesus Saves,” “Jesus 2000=J2k,” or Muslim Abaya
Yes:
Teacher brings speaker to classroom that only presents one religious opinion
No:
Teacher agreeing with religious opinion of speaker
No:
Teacher only bringing one particular religious proponent continuously
No:
Teacher/school paying for speaker if they only present one religious opinion
Student Situations
Can’t restrict student speech unless:
Collides with rights of other students; or
Materially and substantially interferes with school discipline
Yes:
School prohibits school paper publication for fear school would be sued
No:
School prohibits students from wearing armbands in protest of Vietnam war
Federal Law (Congressional Statutes)
Discrimination for Race, Religion, Color, Sex or National Origin
+ (Sexual Identification, Status as Parent, or Disability) in Presidential Executive Order
Equal Access Law – 20 U.S.C. 4071
Only applies if all of the following are applicable:
1. High Schools
2. Receive federal funds
3. Allow any student group to meet on premises
4. During non-school hours (school hours is governed by the Constitution)
Then must: Allow all other groups equal access to announcements and physical space
No:
School personnel leading religious club when employer instructed to supervise
Yes: School personnel leading religious club when there as volunteer
Employment – Title VII of Civil Rights Act of 1964
May not discriminate based on religion (or other categories)
Must provide reasonable accommodations to religious needs of employees
Unless it would cause the employer an undue hardship
Applies to:
1. Fed. Employment;
2. State/Local Employment; and
3. Private Employment (6+ Employees)
Does not apply to:
1. Religious Organizations;
2. Schools owned by religious groups
3. Bonafied occupational qualifications
Situations:
Yes: Department head holds voluntary prayer meetings
Yes: Department head uses scripture to discuss value of job productivity
No:
Supervisor requires employees to participate in religious meetings
No:
Supervisor requires employee to work on Sabbath when others could
easily work for him.
No:
IRS force employee to process abortion clinic tax exemption
No:
AT&T force employee to sign policy saying he valued gay co-worker
Yes: AT&T force employee to sign statement that he would treat gay coworker with respect.
No:
Force union member to pay dues to union when money goes toward
something union member religiously objects to.
Yes: Employer fired employee for saying “God was calling me to the other
side and I could take you with me.”
Public Accommodations – 42 U.S.C. 2000a-b
Can’t deny service to people based on their religion in these service areas:
1. Hotels (with more than 5 rooms)
2. Food establishments
3. Gas stations
4. Entertainment establishments
Education – No religious discrimination
Programs receiving federal funds – No religious discrimination
Zoning/Land Use – RLUIPA (Religious Land use and Institutionalized Persons Act)
Re-establishes Strict Scrutiny for Land Use Laws
Fair Housing – No religious discrimination in renting or selling property
Indiana Constitution - Article 1, Section 2-8
2. Natural right to worship ALMIGHTY GOD
3. Freedom of religious opinions
4. No preference to any religion
5. No religious test for any office
6. No public money for benefit
7. Witnesses are competent regardless of religion
8. Oaths have to be consistent with Conscience
Indiana Law (General Assembly Statues)
Protected Literary Works – IC 20-30-5-3
Protected Works
Constitution
National Motto (IN GOD WE TRUST)
National Anthem
Pledge of Allegiance
IN Constitution
Declaration of Independence
Mayflower Compact
Federalist Papers
Common Sense by Thomas Paine
Writings, speeches, documents & proclamations of founding fathers & US President
Supreme Court Decisions
Executive Orders of the Presidents of the US
Frederick Douglas’ Speech “What to a Slave is the Fourth of July?”
Appeal by David Walker
Chief Seattle’s letter to the US in response to purchase of tribal lands
Students may not be punished for use or reference to any of these in any assignment
Moment of Silence – IC 20-30-5-4.5
Required to have a moment of silence
Students are required to remain seated/standing and cause no distraction
Religious Instruction – IC 20-33-2-19
Allowed to take up to 120 hours of Church teaching/week
Principal must approve
IN Civil Rights Law – IC 22-9-1
No religious discrimination in education, employment, access to public
conveniences/accommodations, real property, or credit
Fair Housing – IC 22-9.5-5
No religious discrimination in sale or rent of property
New Indiana Proposed Bills
Senate Bill 233 – Merry Christmas Bill
1. Meaning of Christmas
2. Say “Merry Christmas”
3. Display nativity scenes
Senate Bill 127 – Private Exemptions Bill
Religious groups can hire based on religion of employee
*But already exempted in Civil Rights Act
Senate Bill 568 – RFRA
Reinstates Strict Scrutiny for making religious exceptions to laws
Allowing businesses, who otherwise would be required to serve everyone the ability to
withhold from people they religiously object to.
*Photographing gay weddings, etc.
*NOTHING DESCRIBED HERE OR IN THE PRESENTATION SHOULD BE CONSTRUED AS
LEGAL ADVICE OR THE CREATION OF AN ATTORNEY-CLIENT RELATIONSHIP. IF YOU
HAVE QUESTIONS REGARDING YOUR SPECIFIC SITUATION, PLEASE SEEK THE ADVICE
OF ANY ATTORNEY, INCLUDING THE LAW OFFICE OF CORY M. SPRUNGER, LLC. THE
STATE OF THE LAW CHANGES CONSTANTLY. THIS PRESENTATION ONLY SEEKS TO
PROVIDE A GENERAL OVERVIEW OF THE LAW AS OF FEBRUARY 2015.