FIRST AMENDMENT

FIRST AMENDMENT
RELIGION AND EXPRESSION
CONTENTS
Page
Religion ....................................................................................................................................... 1013
An Overview ........................................................................................................................ 1013
Scholarly Commentary ................................................................................................ 1014
Court Tests Applied to Legislation Affecting Religion ............................................. 1016
Government Neutrality in Religious Disputes .......................................................... 1020
Establishment of Religion .................................................................................................. 1022
Financial Assistance to Church-Related Institutions ............................................... 1022
Governmental Encouragement of Religion in Public Schools: Released Time ....... 1043
Governmental Encouragement of Religion in Public Schools: Prayers and Bible
Reading ..................................................................................................................... 1044
Governmental Encouragement of Religion in Public Schools: Curriculum Re-
striction ..................................................................................................................... 1048
Access of Religious Groups to School Property ......................................................... 1048
Tax Exemptions of Religious Property ...................................................................... 1051
Exemption of Religious Organizations from Generally Applicable Laws ............... 1052
Sunday Closing Laws .................................................................................................. 1053
Conscientious Objection .............................................................................................. 1054
Regulation of Religious Solicitation ........................................................................... 1055
Religion in Governmental Observances ..................................................................... 1055
Religious Displays on Government Property ............................................................ 1056
Miscellaneous ............................................................................................................... 1058
Free Exercise of Religion ................................................................................................... 1059
The Belief-Conduct Distinction .................................................................................. 1061
The Mormon Cases ...................................................................................................... 1063
The Jehovah’s Witnesses Cases ................................................................................. 1064
Free Exercise Exemption from General Governmental Requirements ................... 1066
Religious Test Oaths ................................................................................................... 1075
Religious Disqualification ........................................................................................... 1075
Freedom of Expression—Speech and Press ............................................................................. 1076
Adoption and Common Law Background ......................................................................... 1076
Freedom of Expression: The Philosophical Basis ............................................................. 1082
Freedom of Expression: Is There a Difference Between Speech and Press? ................. 1083
The Doctrine of Prior Restraint ......................................................................................... 1086
Injunctions and the Press in Fair Trial Cases .......................................................... 1088
Obscenity and Prior Restraint ................................................................................... 1090
Subsequent Punishment: Clear and Present Danger and Other Tests ......................... 1091
Clear and Present Danger .......................................................................................... 1093
The Adoption of Clear and Present Danger .............................................................. 1096
Contempt of Court and Clear and Present Danger .................................................. 1097
Clear and Present Danger Revised: Dennis .............................................................. 1100
Balancing ..................................................................................................................... 1101
The ‘‘Absolutist’’ View of the First Amendment, with a Note on ‘‘Preferred Posi-
tion’’ ........................................................................................................................... 1106
1009
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1010
Freedom of Expression—Speech and Press—Continued
Subsequent Punishment: Clear and Present Danger and Other Tests—Continued
Of Other Tests and Standards: Vagueness, Overbreadth, Least Restrictive
Means, and Others .................................................................................................. 1107
Is There a Present Test? ............................................................................................. 1109
Freedom of Belief ................................................................................................................ 1110
Flag Salute Cases ........................................................................................................ 1111
Imposition of Consequences for Holding Certain Beliefs ......................................... 1112
Right of Association ............................................................................................................ 1114
Political Association .................................................................................................... 1120
Conflict Between Organization and Members .......................................................... 1123
Maintenance of National Security and the First Amendment ....................................... 1126
Punishment of Advocacy ............................................................................................. 1126
Compelled Registration of Communist Party ........................................................... 1129
Punishment for Membership in an Organization Which Engages in Proscribed
Advocacy ................................................................................................................... 1129
Disabilities Attaching to Membership in Proscribed Organizations ....................... 1130
Employment Restrictions and Loyalty Oaths ........................................................... 1133
Legislative Investigations and the First Amendment .............................................. 1137
Interference With War Effort ..................................................................................... 1138
Suppression of Communist Propaganda in the Mails .............................................. 1139
Exclusion of Certain Aliens as a First Amendment Problem .................................. 1139
Particular Government Regulations That Restrict Expression ...................................... 1140
Government as Employer: Political and Other Outside Activities .......................... 1141
Government as Employer: Free Expression Generally ............................................ 1144
Government as Educator ............................................................................................ 1149
Government as Regulator of the Electoral Process: Elections ................................. 1154
Government as Regulator of the Electoral Process: Lobbying ................................. 1162
Government as Regulator of Labor Relations ........................................................... 1163
Government as Investigator: Reporter’s Privilege .................................................... 1164
Government and the Conduct of Trials ..................................................................... 1166
Government as Administrator of Prisons .................................................................. 1170
Government and Power of the Purse ......................................................................... 1173
Governmental Regulation of Communications Industries .............................................. 1176
Commercial Speech ..................................................................................................... 1176
Taxation ....................................................................................................................... 1186
Labor Relations ........................................................................................................... 1188
Antitrust Laws ............................................................................................................ 1188
Radio and Television ................................................................................................... 1189
Governmentally Compelled Right of Reply to Newspapers ..................................... 1193
Regulation of Cable Television ................................................................................... 1193
Government Restraint of Content of Expression ............................................................. 1195
Seditious Speech and Seditious Libel ........................................................................ 1199
Fighting Words and Other Threats to the Peace ...................................................... 1201
Threats of Violence Against Individuals ................................................................... 1203
Group Libel, Hate Speech ........................................................................................... 1205
Defamation ................................................................................................................... 1207
Invasion of Privacy ...................................................................................................... 1215
Emotional Distress Tort Actions ................................................................................ 1217
‘‘Right of Publicity’’ Tort Actions ................................................................................ 1218
Publication of Legally Confidential Information ...................................................... 1219
Obscenity ...................................................................................................................... 1220
Child Pornography ...................................................................................................... 1230
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1011
Freedom of Expression—Speech and Press—Continued
Government Restraint of Content of Expression—Continued
Nonobscene But Sexually Explicit and Indecent Expression .................................. 1231
Speech Plus—The Constitutional Law of Leafleting, Picketing, and Demonstrating .. 1238
The Public Forum ........................................................................................................ 1238
Quasi-Public Places ..................................................................................................... 1246
Picketing and Boycotts by Labor Unions .................................................................. 1248
Public Issue Picketing and Parading ......................................................................... 1250
Leafleting, Handbilling, and the Like ....................................................................... 1258
Sound Trucks, Noise ................................................................................................... 1260
Door-to-Door Solicitation ............................................................................................ 1261
The Problem of ‘‘Symbolic Speech’’ ............................................................................ 1263
Rights of Assembly and Petition .............................................................................................. 1267
Background and Development ........................................................................................... 1267
The Cruikshank Case .................................................................................................. 1269
The Hague Case .......................................................................................................... 1270
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RELIGION AND FREE EXPRESSION
FIRST AMENDMENT
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a re-
dress of grievances.
RELIGION
An Overview
Madison’s original proposal for a bill of rights provision con-
cerning religion read: ‘‘The civil rights of none shall be abridged on
account of religious belief or worship, nor shall any national reli-
gion be established, nor shall the full and equal rights of conscience
be in any manner, or on any pretence, infringed.’’ 1 The language
was altered in the House to read: ‘‘Congress shall make no law es-
tablishing religion, or to prevent the free exercise thereof, or to in-
fringe the rights of conscience.’’ 2 In the Senate, the section adopted
read: ‘‘Congress shall make no law establishing articles of faith, or
a mode of worship, or prohibiting the free exercise of religion, . . .’’ 3
It was in the conference committee of the two bodies, chaired by
Madison, that the present language was written with its somewhat
1 1 ANNALS OF CONGRESS 434 (June 8, 1789).
2 The committee appointed to consider Madison’s proposals, and on which Madi-
son served, with Vining as chairman, had rewritten the religion section to read: ‘‘No
religion shall be established by law, nor shall the equal rights of conscience be in-
fringed.’’ After some debate during which Madison suggested that the word ‘‘na-
tional’’ might be inserted before the word ‘‘religion’’ as ‘‘point[ing] the amendment
directly to the object it was intended to prevent,’’ the House adopted a substitute
reading: ‘‘Congress shall make no laws touching religion, or infringing the rights of
conscience.’’ 1 ANNALS OF CONGRESS 721–31 (August 15, 1789). On August 20, on
motion of Fisher Ames, the language of the clause as quoted in the text was adopt-
ed. Id. at 766. According to Madison’s biographer, ‘‘[t]here can be little doubt that
this was written by Madison.’’ I. BRANT, JAMES MADISON—FATHER OF THE CON-
STITUTION 1787–1800 at 271 (1950).
3 This text, taken from the Senate Journal of September 9, 1789, appears in 2
THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 1153 (B. Schwartz ed., 1971). It was
at this point that the religion clauses were joined with the freedom of expression
clauses.
1013
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1014
AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
more indefinite ‘‘respecting’’ phraseology. 4 Debate in Congress
lends little assistance in interpreting the religion clauses; Madi-
son’s position, as well as that of Jefferson, who influenced him, is
fairly clear, 5 but the intent, insofar as there was one, of the others
in Congress who voted for the language and those in the States
who voted to ratify is subject to speculation.
Scholarly Commentary.—The explication of the religion
clauses by scholars in the nineteenth century gave a restrained
sense of their meaning. Story, who thought that ‘‘the right of a soci-
ety or government to interfere in matters of religion will hardly be
contested by any persons, who believe that piety, religion, and mo-
rality are intimately connected with the well being of the state, and
indispensable to the administration of civil justice,’’ 6 looked upon
the prohibition simply as an exclusion from the Federal Govern-
ment of all power to act upon the subject. ‘‘The situation . . . of the
different states equally proclaimed the policy, as well as the neces-
sity of such an exclusion. In some of the states, episcopalians con-
stituted the predominant sect; in others presbyterians; in others,
congregationalists; in others, quakers; and in others again, there
was a close numerical rivalry among contending sects. It was im-
possible, that there should not arise perpetual strife and perpetual
jealousy on the subject of ecclesiastical ascendancy, if the national
government were left free to create a religious establishment. The
only security was in extirpating the power. But this alone would
have been an imperfect security, if it had not been followed up by
4 1 ANNALS OF CONGRESS 913 (September 24, 1789). The Senate concurred the
same day. See I. BRANT, JAMES MADISON—FATHER OF THE CONSTITUTION 1787–
1800 271–72 (1950).
5 During House debate, Madison told his fellow Members that ‘‘he apprehended
the meaning of the words to be, that Congress should not establish a religion, and
enforce the legal observation of it by law, nor compel men to worship God in any
Manner contrary to their conscience.’’ 1 ANNALS OF CONGRESS 730 (August 15,
1789). That his conception of ‘‘establishment’’ was quite broad is revealed in his veto
as President in 1811 of a bill which in granting land reserved a parcel for a Baptist
Church in Salem, Mississippi; the action, explained President Madison, ‘‘comprises
a principle and precedent for the appropriation of funds of the United States for the
use and support of religious societies, contrary to the article of the Constitution
which declares that ‘Congress shall make no law respecting a religious establish-
ment.’’’ 8 THE WRITINGS OF JAMES MADISON (G. Hunt, ed.) 132–33 (1904). Madison’s
views were no doubt influenced by the fight in the Virginia legislature in 1784–1785
in which he successfully led the opposition to a tax to support teachers of religion
in Virginia and in the course of which he drafted his ‘‘Memorial and Remonstrance
against Religious Assessments’’ setting forth his thoughts. Id. at 183–91; I.
BRANT, JAMES MADISON—THE NATIONALIST 1780–1787 343–55 (1948). Acting on the
momentum of this effort, Madison secured passage of Jefferson’s ‘‘Bill for Religious
Liberty’’. Id. at 354; D. MALONE, JEFFERSON THE VIRGINIAN 274–280 (1948). The
theme of the writings of both was that it was wrong to offer public support of any
religion in particular or of religion in general.
6 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1865
(1833).
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AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
1015
a declaration of the right of the free exercise of religion, and a pro-
hibition (as we have seen) of all religious tests. Thus, the whole
power over the subject of religion is left exclusively to the state
governments, to be acted upon according to their own sense of jus-
tice, and the state constitutions; and the Catholic and the Protes-
tant, the Calvinist and the Arminian, the Jew and the Infidel, may
sit down at the common table of the national councils, without any
inquisition into their faith, or mode of worship.’’ 7
‘‘Probably,’’ Story also wrote, ‘‘at the time of the adoption of the
constitution and of the amendment to it, now under consideration,
the general, if not the universal, sentiment in America was, that
Christianity ought to receive encouragement from the state, so far
as was not incompatible with the private rights of conscience, and
the freedom of religious worship. An attempt to level all religions,
and to make it a matter of state policy to hold all in utter indiffer-
ence, would have created universal disapprobation, if not universal
indignation.’’ 8 The object, then, of the religion clauses in this view
was not to prevent general governmental encouragement of reli-
gion, of Christianity, but to prevent religious persecution and to
prevent a national establishment. 9
Not until the Supreme Court held the religion clauses applica-
ble to the states in the 1940s 10 did it have much opportunity to in-
terpret them. But it quickly gave them a broad construction. In
Everson v. Board of Education, 11 the Court, without dissent on this
point, declared that the Establishment Clause forbids not only
practices that ‘‘aid one religion’’ or ‘‘prefer one religion over an-
other,’’ but also those that ‘‘aid all religions.’’ With respect to the
Free Exercise Clause, it asserted in Wisconsin v. Yoder 12 that ‘‘only
those interests of the highest order and those not otherwise served
can overbalance legitimate claims to the free exercise of religion.’’
More recent decisions, however, evidence a narrower interpre-
tation of the religion clauses. Indeed, in Employment Division, Or-
egon Department of Human Resources v. Smith 13 the Court aban-
doned its earlier view and held that the Free Exercise Clause
never ‘‘relieve(s) an individual of the obligation to comply with a
‘valid and neutral law of general applicability.’’’ On the Establish-
7 Id. at 1873.
8 Id. at 1868.
9 For a late expounding of this view, see T. COOLEY, GENERAL PRINCIPLES OF
CONSTITUTIONAL LAW IN THE UNITED STATES 224–25 (3d ed. 1898).
10 Cantwell v. Connecticut, 310 U.S. 296 (1940) (free exercise clause); Everson
v. Board of Education, 330 U.S. 1 (1947) (establishment clause).
11 330 U.S. 1, 15 (1947). Establishment Clause jurisprudence since, whatever its
twists and turns, maintains this view.
12 406 U.S. 205, 215 (1972).
13 494 U.S. 872, 879 (1990).
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1016
AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
ment Clause the Court has not wholly repudiated its previous hold-
ings, but recent decisions have evidenced a greater sympathy for
the view that the clause bars ‘‘preferential’’ governmental pro-
motion of some religions but allows governmental promotion of all
religion in general. 14 Nonetheless, the Court remains sharply split
on how to interpret both clauses.
Court Tests Applied to Legislation Affecting Religion.—
Before considering in detail the development of the two religion
clauses by the Supreme Court, one should notice briefly the tests
the Court has articulated to adjudicate the religion cases. At the
same time it should be emphasized that the Court has noted that
the language of earlier cases ‘‘may have [contained] too sweeping
utterances on aspects of these clauses that seemed clear in relation
to the particular cases but have limited meaning as general prin-
ciples.’’ 15 While later cases have relied on a series of well-defined,
if difficult-to-apply, tests, the Court has cautioned that ‘‘the pur-
pose [of the religion clauses] was to state an objective, not to write
a statute.’’ 16
In 1802, President Jefferson wrote a letter to a group of Bap-
tists in Danbury, Connecticut, in which he declared that it was the
purpose of the First Amendment to build ‘‘a wall of separation be-
tween Church and State.’’ 17 In Reynolds v. United States, 18 Chief
Justice Waite for the Court characterized the phrase as ‘‘almost an
authoritative declaration of the scope and effect of the amend-
ment.’’ In its first encounters with religion-based challenges to
state programs, the Court looked to Jefferson’s metaphor for sub-
stantial guidance. 19 But a metaphor may obscure as well as illu-
minate, and the Court soon began to emphasize neutrality and vol-
14 See Agostini v. Felton, 521 U.S. 203 (1997); Mitchell v. Helms, 530 U.S. 793
(2000); and Zelman v. Simmons-Harris, 122 S. Ct. 2460 (2002). The fullest critique
of the Court’s broad interpretation of the establishment clause was given by
then-Justice Rehnquist in dissent in Wallace v. Jaffree, 472 U.S. 38, 91 (1985).
15 Walz v. Tax Comm’n, 397 U.S. 664, 668 (1970).
16 397 U.S. at 668.
17 16 THE WRITINGS OF THOMAS JEFFERSON 281 (A. Libscomb ed., 1904).
18 98 U.S. 145, 164 (1879).
19 Everson v. Board of Education, 330 U.S. 1, 16 (1947); Illinois ex rel. McCol-
lum v. Board of Education, 333 U.S. 203, 211, 212 (1948); cf. Zorach v. Clauson, 343
U.S. 306, 317 (1952) (Justice Black dissenting). In Lemon v. Kurtzman, 403 U.S.
602, 614 (1971), Chief Justice Burger remarked that ‘‘the line of separation, far from
being a ‘wall,’ is a blurred, indistinct and variable barrier depending on all the cir-
cumstances of a particular relationship.’’ Similar observations were repeated by the
Chief Justice in his opinion for the Court in Lynch v. Donnelly, 465 U.S. 668, 673
(1984) (the metaphor is not ‘‘wholly accurate’’; the Constitution does not ‘‘require
complete separation of church and state [but] affirmatively mandates accommoda-
tion, not merely tolerance, of all religions, and forbids hostility toward any’’).
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AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
1017
untarism as the standard of restraint on governmental action. 20
The concept of neutrality itself is ‘‘a coat of many colors,’’ 21 and
three standards that seemingly could be stated in objective fashion
emerged as tests of Establishment Clause validity. The first two
standards emerged together. ‘‘The test may be stated as follows:
what are the purpose and the primary effect of the enactment? If
either is the advancement or inhibition of religion then the enact-
ment exceeds the scope of legislative power as circumscribed by the
Constitution. That is to say that to withstand the strictures of the
Establishment Clause there must be a secular legislative purpose
and a primary effect that neither advances nor inhibits religion.’’ 22
The third test emerged several years later and asks whether the
governmental program results in ‘‘an excessive government entan-
glement with religion. The test is inescapably one of degree . . .
[T]he questions are whether the involvement is excessive, and
whether it is a continuing one calling for official and continuing
surveillance leading to an impermissible degree of entangle-
ment.’’ 23 In 1971 these three tests were combined and restated in
Chief Justice Burger’s opinion for the Court in Lemon v.
Kurtzman, 24 and are frequently referred to by reference to that
case name.
Although at one time accepted in principle by all of the Jus-
tices, 25 the tests have sometimes been difficult to apply, 26 have re-
20 Zorach v. Clauson, 343 U.S. 306, 314 (1952); Engel v. Vitale, 370 U.S. 421
(1962); Sherbert v. Verner, 374 U.S. 398 (1963); Abington School District v.
Schempp, 374 U.S. 203, 305 (1963) (Justice Goldberg concurring); Walz v. Tax
Comm’n, 397 U.S. 664, 694–97 (1970) (Justice Harlan concurring). In the opinion
of the Court in the latter case, Chief Justice Burger wrote: ‘‘The course of constitu-
tional neutrality in this area cannot be an absolutely straight line; rigidity could
well defeat the basic purpose of these provisions, which is to insure that no religion
be sponsored or favored, none commanded, and none inhibited. The general prin-
ciple deducible from the First Amendment and all that has been said by the Court
is this: that we will not tolerate either governmentally established religion or gov-
ernmental interference with religion. Short of those expressly proscribed govern-
mental acts there is room for play in the joints productive of a benevolent neutrality
which will permit religious exercise to exist without sponsorship and without inter-
ference.’’ Id. at 669.
21 Board of Education v. Allen, 392 U.S. 236, 249 (1968) (Justice Harlan concur-
ring).
22 Abington School District v. Schempp, 374 U.S. 203, 222 (1963).
23 Walz v. Tax Comm’n, 397 U.S. 664, 674–75 (1970).
24 403 U.S. 602, 612–13 (1971).
25 E.g., Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646,
653 (1980), and id. at 665 (dissenting opinion); Stone v. Graham, 449 U.S. 39, 40
(1980), and id. at 43 (dissenting opinion).
26 The tests provide ‘‘helpful signposts,’’ Hunt v. McNair, 413 U.S. 734, 741
(1973), and are at best ‘‘guidelines’’ rather than a ‘‘constitutional caliper;’’ they must
be used to consider ‘‘the cumulative criteria developed over many years and apply-
ing to a wide range of governmental action.’’ Inevitably, ‘‘no ‘bright line’ guidance
is afforded.’’ Tilton v. Richardson, 403 U.S. 672, 677–78 (1971). See also Committee
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1018
AMENDMENT 1—RELIGION, FREE SPEECH, ETC.
cently come under direct attack by some Justices, 27 and in several
instances have not been applied at all by the Court. 28 Nonetheless,
the Court employed the Lemon tests in several of its most recent
establishment clause decisions, 29 and it remains the case that
those tests have served as the primary standard of establishment
clause validity for the past three decades. However, other tests
have also been formulated and used. Justice Kennedy has proffered
‘‘coercion’’ as an alternative test for violations of the establishment
clause, 30 and the Court has used that test as the basis for decision
from time to time. 31 But that test has been criticized on the
for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 761 & n.5, 773 n.31
(1973); Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 662
(1980), and id. at 663 (Justice Blackmun dissenting).
27 See, e.g., Edwards v. Aguillard, 482 U.S. 578, 636–40 (1987) (Justice Scalia,
joined by Chief Justice Rehnquist, dissenting) (advocating abandonment of the ‘‘pur-
pose’’ test); Wallace v. Jaffree, 472 U.S. 38, 108–12 (1985) (Justice Rehnquist dis-
senting); Aguilar v. Felton, 473 U.S. 402, 426–30 (1985) (Justice O’Connor, dis-
senting) (addressing difficulties in applying the entanglement prong); Roemer v.
Maryland Bd. of Public Works, 426 U.S. 736, 768–69 (Justice White concurring in
judgment) (objecting to entanglement test). Justice Kennedy has also acknowledged
criticisms of the Lemon tests, while at the same time finding no need to reexamine
them. See, e.g., Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 655–
56 (1989). At least with respect to public aid to religious schools, Justice Stevens
would abandon the tests and simply adopt a ‘‘no-aid’’ position. Committee for Public
Educ. & Religious Liberty v. Regan, 444 U.S. 646, 671 (1980).
28 See Marsh v. Chambers, 463 U.S. 783 (1983) (upholding legislative prayers
on the basis of historical practice); Lee v. Weisman, 505 U.S. 577, 587 (1992) (reject-
ing a request to reconsider Lemon because the practice of invocations at public high
school graduations was invalid under established school prayer precedents). The
Court has also held that the tripartite test is not applicable when law grants a de-
nominational preference, distinguishing between religions; rather, the distinction is
to be subjected to the strict scrutiny of a suspect classification. Larson v. Valente,
456 U.S. 228, 244–46 (1982). See also Zobrest v. Catalina Foothills School Dist., 509
U.S. 1 (1993) (upholding provision of sign-language interpreter to deaf student at-
tending parochial school); Board of Educ. of Kiryas Joel Village v. Grumet, 512 U.S.
687 (1994) (invalidating law creating special school district for village composed ex-
clusively of members of one religious sect); Rosenberger v. University of Virginia,
515 U.S. 819 (1995) (upholding the extension of a university subsidy of student pub-
lications to a student religious publication).
29 Agostini v. Felton, 521 U.S. 203 (1997) (upholding under the Lemon tests the
provision of remedial educational services by public school teachers to sectarian ele-
mentary and secondary schoolchildren on the premises of the sectarian schools);
Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) (holding unconstitutional
under the Lemon tests as well as under the coercion and endorsement tests a school
district policy permitting high school students to decide by majority vote whether
to have a student offer a prayer over the public address system prior to home foot-
ball games); and Mitchell v. Helms, 530 U.S. 793 (2000) (upholding under the
Lemon tests a federally funded program providing instructional materials and
equipment to public and private elementary and secondary schools, including sec-
tarian schools).
30 County of Allegheny v. Greater Pittsburgh ACLU, 492 U.S. 573, 655 (1989)
(Justice Kennedy concurring in part and dissenting in part); and Lee v. Weisman,
505 U.S. 577 (1992).
31 Lee v. Weisman, 505 U.S. 577 (1992), and Santa Fe Indep. Sch. Dist. v. Doe,
530 U.S. 290 (2000).
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