Loosing is not fun, but loosing because a court ignored established law is especially discouraging. Mike Newdow and I filed a lawsuit in December 2008 on behalf of over 250 plaintiffs challenging the religious practices of the 2009 presidential inaugural ceremony. One of the documents we filed in the course of the litigation was a list of Supreme Court cases in which the majority recognized the First Amendment mandate for religious neutrality. [1] Tho we lost the case, I remain convinced that the Constitution requires government to be neutral in matters of religion and that we should have won on the merits had the district and appeals courts not exhibited extreme bias.
I offer the list for your consideration:
1. McCreary
County v. ACLU, 545 U.S. 844, 860 (2005) – “The touchstone for our analysis is
the principle that the ‘First Amendment mandates governmental neutrality
between religion and religion, and between religion and nonreligion.’”
2. Cutter
v. Wilkinson, 544 U.S. 709, 720 (2005) – courts “must be satisfied that the
Act’s prescriptions are and will be administered neutrally among different
faiths”
3. Zelman
v. Simmons-Harris, 536 U.S. 639, 652 (2002) – “[W]here a government aid program is
neutral with respect to religion … the program is not readily subject to
challenge under the Establishment Clause.”
4. Good
News Club v. Milford Cent. Sch., 533 U.S. 98, 114 (2001) –
“[W]e have held that “a significant factor in upholding governmental programs
in the face of Establishment Clause attack is their neutrality towards
religion.”
5. Mitchell
v. Helms, 530 U.S. 793, 809 (2000) – “In distinguishing between
indoctrination that is attributable to the State and indoctrination that is
not, we have consistently turned to the principle of neutrality.”
6. Agostini
v. Felton, 521 U.S. 203, 234 (1997) – “We therefore hold that a federally
funded program providing supplemental, remedial instruction to disadvantaged
children on a neutral basis is not invalid under the Establishment Clause ...”
7. Rosenberger
v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 839
(1995) – “A central lesson of our decisions is that a significant factor in
upholding governmental programs in the face of Establishment Clause attack is
their neutrality towards religion.”
8. Bd.
of Educ. v. Grumet, 512 U.S. 687, 696 (1994) – “‘A proper respect for both the Free
Exercise and the Establishment Clauses compels the State to pursue a course of
‘neutrality’ toward religion.’”
9. Zobrest v. Catalina Foothills Sch. Dist.,
509 U.S. 1, 8 (1993) – referencing “government programs that neutrally provide
benefits”
10. Church of Lukumi Babalu Aye v. City of
Hialeah, 508 U.S. 520, 533 (1993) – “A law lacks facial neutrality if it
refers to a religious practice without a secular meaning discernible from the
language or context.”
11. Lamb’s Chapel v. Center Moriches Union
Free Sch. Dist., 508 U.S. 384, 393 (1993) – “[T]he total ban on using District
property for religious purposes could survive First Amendment challenge only if
excluding this category of speech was reasonable and viewpoint neutral.”
12. Bd. of Educ. of Westside Cmty. Sch. v.
Mergens, 496 U.S. 226, 251 (1990) – Government act is constitutional if
it “evinces neutrality toward, rather than endorsement of, religious speech.”
13. Jimmy Swaggart Ministries v. Board of
Equalization, 493 U.S. 378, 384 (1990) – noting “‘the constitutional
requirement for governmental neutrality.’”
14. Texas Monthly, Inc. v. Bullock,
489 U.S. 1, 13 (n.2) (1989) – referencing “‘the policy of neutrality’”
15. Bowen v. Kendrick,
487 U.S. 589, 609 (1988) – recognizing the requirement that “the challenged
statute appears to be neutral on its face.”
16. Corporation of Presiding Bishop of the
Church of Jesus Christ of Latter-Day Saints v. Amos,
483 U.S. 327, 335 (1987) – “Lemon’s ‘purpose’ requirement aims at preventing
the relevant governmental decisionmaker -- in this case, Congress -- from
abandoning neutrality and acting with the intent of promoting a particular
point of view in religious matters.”
17. School Dist. v. Ball,
473 U.S. 373, 382 (1985) – “The solution to this problem adopted by the Framers
and consistently recognized by this Court is jealously to guard the right of
every individual to worship according to the dictates of conscience while
requiring the government to maintain a course of neutrality among religions,
and between religion and nonreligion.”)
18. Wallace v. Jaffree,
472 U.S. 38, 60 (1985) – recognizing “the established principle that the
government must pursue a course of complete neutrality toward religion.” Cf. “the
individual freedom of conscience protected by the First Amendment embraces the
right to select any religious faith or none at all.” At 53.
19. Mueller v. Allen,
463 U.S. 388, 398-99 (1983) – “a program ... that neutrally provides state
assistance to a broad spectrum of citizens is not readily subject to challenge
under the Establishment Clause.”
20. Bob Jones Univ. v. United States,
461 U.S. 574, 604 (1983) – upholding “policy … founded on a ‘neutral, secular
basis.’”
21. Larson v. Valente,
456 U.S. 228, 246 (1982) – “This principle of denominational neutrality has
been restated on many occasions.” “The clearest
command of the Establishment Clause is that one religious denomination cannot
be officially preferred over another.” (At 244)
22. Widmar v. Vincent,
454 U.S. 263, 274 (1981) – denying challenge because “the University’s policy
is one of neutrality toward religion.”
23. Thomas v. Review Bd. of Ind. Employment
Sec. Div., 450 U.S. 707, 720 (1981) – a noting “the governmental obligation
of neutrality in the face of religious differences.”
24.
McDaniel v. Paty,
435 U.S. 618, 629 (1978) – noting the Establishment Clause’s “command of
neutrality.”
25.
Meek v. Pittenger,
421 U.S. 349, 372 (1975) – requiring “that auxiliary teachers remain
religiously neutral, as the Constitution demands.”
26. Comm. for Public Educ. & Religious
Liberty v. Nyquist, 413 U.S. 756, 792-93 (1973) – “A proper respect for both the
Free Exercise and the Establishment Clauses compels the State to pursue a
course of ‘neutrality’ toward religion.”
27. Wisconsin v. Yoder,
406 U.S. 205, 220 (1972) – noting “the constitutional requirement for
governmental neutrality.”
28. Tilton v. Richardson,
403 U.S. 672, 688 (1971) – approving of “facilities that are themselves
religiously neutral.”
29.
Lemon v. Kurtzman,
403 U.S. 602, 618 (1971) – recognizing the mandate for “remaining religiously
neutral.”
30. Gillette v. United States,
401 U.S. 437, 449 (1971) – “[W]hat is perhaps the central purpose of the
Establishment Clause [is] the purpose of ensuring governmental neutrality in
matters of religion.”
31.
Epperson v. Arkansas, 393 U.S. 97,
103-04 (1968) – “Government in our democracy, state and national, must
be neutral in matters of religious theory, doctrine, and practice. It may not be
hostile to any religion or to the advocacy of noreligion; and it may not aid,
foster, or promote one religion or religious theory against another or even
against the militant opposite. The First Amendment mandates governmental
neutrality between religion and religion, and between religion and nonreligion.”
32.
Sherbert v. Verner, 374 U.S. 398, 409 (1963) –
noting “the governmental obligation of neutrality in the face of religious
differences.”
33.
Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203,
215 (1963) – “examining this ‘neutral’ position in which the Establishment and
Free Exercise Clauses of the First Amendment place our Government.”
34.
Engel v. Vitale, 370 U.S. 421, 443 (1962) – “The
First Amendment leaves the Government in a position not of hostility to
religion but of neutrality.”
35.
Everson v. Bd. of Education of Ewing Township, 330 U.S. 1, 15
(1947) – “Neither [a state nor the Federal Government] can pass laws which
which aid one religion, aid all religions, or prefer one religion over
another.” Also, “[The First Amendment] requires the state to be a neutral in its
relations with groups of religious believers and non-believers; it does not
require the state to be their adversary. State power is no more to be used so
as to handicap religions, than it is to favor them.” At 18.
In addition, the plurality opinion in Van Orden v. Perry, 545 U.S. 677, 684 (2005) discusses “‘the very neutrality the Establishment Clause requires.’” Justice Breyer provided the fifth vote in Van Orden and he joined the majority opinion in McCreary. Consequently, the Van Orden majority (tho not the majority opinion) recognized mandate for religions neutrality. Sadly, the Van Orden majority failed to recognize that the Eagles-donated Ten Commandments monument erected on the Texas State Capitol grounds is not neutral.
[1] This list of cases was originally prepared by Michael Newdow and appeared as Exhibit A in
Document 4-2 filed on January 5, 2009 in Newdow
v. Roberts (D. D.C., 1:08-cv-02248-RBW). Minor formatting changes have been
made. All internal citations are omitted in this listing.
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