Do Constitutions Require Governments to Refrain from Religion in Public Schools? A Comparison Between the U.S., Germany and New Zealand

3 Different Countries, 3 Different Approaches?

Master's Thesis, 2010

40 Pages, Grade: A-


Table of Contents

I. Introduction

II. Freedom of Religion in the United States
A. The First Amendment
1. Addressee of the First Amendment
2. The Establishment Clause
3. What is the Test for Establishment
(a) Everson v Board of Education – The Doctrine of Strict Separation
(b) Lemon v Kurzman – The Three Prong Lemon Test
(c) Lynch v Donnelly – The Endorsement Test
(d) Lee v Weisman – The Coercion Test
4. The Free Exercise Clause
B. Religion in Public Schools
1. Prayers in Public School
(a) Engel v Vitale
(b) Abingdon v School District v Schempp
(c) Wallace v Jaffree
(d) Lee v Weisman
(e) Santa Fe Independent School District v Doe
2. Religious Symbols in Public Schools
C. Conclusion

III. Freedom of Religion in Germany
A. The Relationship between State and Church
B. Freedom of Religion – Article 4 GG
1. Article 4(1) – The Forum Internum
2. Article 4(2) – The Forum Externum
3. Limitations of Article 4
C. Religion in Public Schools
1. Prayers in Public Schools
2. Religious Symbols in Public Schools
(a) The Crucifix Decision – First Act
(b) The Crucifix Decision – Second Act
(c) The Crucifix Decision – Third Act
D. Conclusion

IV. Freedom of Religion in New Zealand

I. Introduction

From time immemorial religion has given rise to disputes, which were not seldom led by the force of arms. As the outcome of these disputes has always been worst, when a government sided with a particular religion1, there is good reason to believe that governments do well to take up an impartial position towards religions. Having learned their “history lesson” modern democratic constitutions thus do not only guarantee religious freedom to the individual, but also require a certain level of separation between church and state, being an indispensable complement for the undisturbed exercise of one’s religion. Although the constitutional embedding of religious freedom and state neutrality has put an end to the bloody religious conflicts in most countries, conflicts in religiously diverse countries still continue; only they have shifted to the courtrooms.

For most state activity at least accidently also affects religious groups it is quite obvious that church-state separation cannot be demanded absolutely. Accordingly the task must be to determine when a state crosses the permissible line. It is hardly surprising that this line drawing – the disproportionate high body of litigation in this area bears witness – is a matter of particular delicacy in the area of public education. Religion and education both form crucial cornerstones of shaping a youth’s personality.2 Apart from the parents it is often the state that undertakes the education of children. It is quite obvious that state neutrality and protection of religious freedom is particularly important in this area, where young children are strongly exposed to state influence. Accordingly many parents will keep a weary eye on the state’s non-interference with their children’s beliefs.

On the other hand there are comprehensible reasons why religion may well have its place in the public educational system too. If religion plays such an important role in the self-development of adolescents does the positive freedom of religion not even dictate schools to allow students the expression of their belief in a larger community if they so wish? Moreover, it is undeniable that religions form a fundamental cornerstone of the development, identity and self-conception of almost every nation in the world. As such religion is part of a nation’s history and the state as well as pupils and parents may have sound reasons to honour it in a collective.

It is the essay’s goal to examine how different countries balance these conflicting interests in the setting of public schools. Mainly based on a comparison between the U.S. and Germany the essay will focus on two groups of cases the highest constitutional courts3 of both countries were confronted with. In the first body of cases the courts had to decide whether the official requirement of prayers in public schools violated the constitutions. The second group concerned the state ordered affixing of religious symbols – namely the Crucifix and the Ten Commandments – in public school classrooms.4

Starting with the U.S. the essay will first provide the necessary constitutional background. The American Constitution5 remains silent on the relationship between religion and public schools. Yet it rules the relationship between religion and the state in the Establishment Clause of the First Amendment. Over the years the Supreme Court has developed different tests as to when state activity constitutes an impermissible establishment of religion. As the public educational system forms part of the state system these tests also govern the relationship between public schools and religion.6 As far as the tests are relevant for the analysis they will be outlined under. The Free Exercise Clause – the second religious guarantee in the First Amendment – only played a minor rule in the here considered cases. Accordingly it will only be dealt with shortly under. In a third step the cases on the above mentioned issues will be analysed in detail followed by a final conclusion as to what the current legal situation in the U.S is at the moment.

Turning to Germany then the second part starts with an outline of the interplay between state and church as envisaged by the Basic Law.7 The relevant constitutional details of that relationship will be illuminated under III.A. Even though the German Constitution also prohibits the establishment of a religion, it was the German equivalent of the U.S. free exercise clause that played the key role in the cases before the Federal Constitutional Court. Hence, it will be dwelled on under III.B before the cases itself come under closer scrutiny. In this context special attention is also given to a very recent decision of the European Court of Human Rights (ECHR). Although it does not immediately affect Germany it will most likely refuel a debate that has putatively already been settled. The second part will conclude with an assessment of the treatment of religion in public schools in Germany and oppose it to the findings regarding the U.S.

Part three will contemplate a country that looks back at a relatively short tradition of a written Bill of Rights – New Zealand. Since there is only little religious freedom litigation in New Zealand the essay will confine itself to an outline of the relevant constitutional provisions followed by a prognosis as to what the outcome of a similar public school case would presumably be in New Zealand.

II. Freedom of Religion in the United States

A. The First Amendment

The first Amendment forms a part of the Bill of Rights which was added to the Constitution in 1991. The here relevant part of it states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof […]”. Two religious guarantees are provided. The so called Establishment Clause requires a certain level of neutrality between state and church whereas the Free Exercise Clause conveys the individual an autonomous sphere in matters of belief that must not be invaded by civil authority.8 Although both guarantees turned out to be at odds with each other in many cases they serve the common purpose to secure religious liberty.9

1. Addressee of the First Amendment

On its face the both guarantees only seem to be good against the federal government. However, in two judgments10 from the 1940s the Supreme Court made them also available against the states by way of (selective) incorporation through the 14th Amendment’s Due Process Clause.

Hence, any governmental behaviour, be it state or federal, can be challenged by the measure of the First Amendment.11

2. The Establishment Clause

Having said that the Constitution demands a certain level of neutrality naturally raises a further question: How neutral must the state be? At what point does the state start to establish a religion? The Establishment Clause itself does not provide any guideline to find an answer – at least not in the borderline cases. Yet two points are beyond doubt. Firstly, the First Amendment hinders the government from establishing an official religion. In so far it responds to the cruel attempts of many European governments to establish “its” religion by the force of law between the 16th and 18th century.12 Even if there is no official state religion the government also must not pursue a policy that favours one or some religions over others.13 That is the second point which is commonly agreed upon.

But what if the state encourages all religions, what if it takes an irreligious position? These questions cannot be resolved on the basis of the agreed principles. Hence, it was left to the courts and scholars to develop guidelines as to when state action passes the muster of the Establishment Clause. Two main streamings of thought can be identified.

The so called separationists eye at a state that keeps entirely out of any religious affairs.14 Vice versa the political body must not be intruded by any sectarian influences.15 Advocates of this doctrine stand in the tradition of Thomas Jefferson according to whom the Establishment Clause is meant to erect a “wall of separation between church and state”. This position forbids any government to use religion or non-religion as a criterion for its policy, be it an action or omission.

A second philosophy promotes a less rigid version of separation in that they allow some form of accommodation between the state and the church. Pursuant to this understanding some sort of governmental support of religion may be permissible, as long as it is equally conferred to all religions.16

Both principles have made their way into contemporary judgments of the Supreme Court. However as they are both rather indistinct, courts had to sharpen its contours. In doing so they have de- and refined a variety of tests as to when governmental action violates the Establishment Clause. As far as they are of relevance they will be outlined subsequently.[17]

3. What is the Test for Establishment

(a) Everson v Board of Education – The Doctrine of Strict Separation

In Everson v Board of Education the Supreme Court for the first time had the chance to clarify the relationship between state and church. At issue was a New Jersey statute that allowed local communities to subsidize bus transportation to private and public schools. Making use of this authorisation a school board, inter alia, reimbursed expenses parents had made for sending their children to Catholic schools. Everson, the appellant, asserted the statute to violate the Constitution, since the taxes he was obliged to pay were (also) spend to facilitate attendance at church schools. This being the case the statute would constitute “a law respecting an establishment of religion.”18

A five to four split Court did not follow Everson’s line of argumentation and upheld the statute. The majority of the Court, for whom Justice Black was writing, buttressed its findings mainly by a historical analysis of the First Amendment. Just as the enactment of the Virginia Bill of Religious Liberties was meant to wall off the growing influence of the dominant church in political affairs in the state of Virginia, as was the First Amendment intended to “provide […] protection against governmental intrusion on religious liberty”19 at federal level. In the Court’s view this conclusion was compelling since the initiators of the Virginia Bill, Jefferson and Madison, also played leading roles in the drafting and adoption of the First Amendment.

Before turning to the constitutionality of the statute itself Justice Black summarized the scope of the Establishment Clause at least to be ascribed to it:20

Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.

Three aspects are worth highlighting. In the Court’s view the Establishment Clause even required neutrality among religion and non-religion, since it was held to prohibit the state also to aid all religions. Thereby it implicitly rejected the notion of an accommodation of religion. Instead the Court favored Jefferson’s concept of a strict separation between state and church, which was also accepted by the dissenting Justices. However, the majority acknowledged that the concept of separation cannot be upheld absolutely, since even religiously neutral policy will often incidentally but inevitably help religious groups. Such a policy is not objectionable, since the First Amendment “requires the state [only]; it does not require the state to be their adversary.”21 As the statute only pursued a secular purpose in facilitating school transport of children regardless of their religion and the help was not directly given to the schools the wall of separation was not breached.

The dissenters criticized that the Court had set up the right measure but than inconsistently applied it, since the statute clearly violated the non-aid requirement.22 In their view religious schools were to be exempted from the program in order to uphold the wall of separation. However, such an interpretation of the Establishment Clause would allot the state the role of an adversary of religion in that it requires it to favor non-religion over religion, which seems to clash with the Free Exercise Clause. What the non-aid requirement was probably supposed to do was to prevent giving aid to religions without aiding non-religions.[23]

(b) Lemon v Kurzman – The Three Prong Lemon Test

In this case the Court invalidated two state programs that provided financial aid to private elementary and secondary schools among which were also sectarian schools. A Pennsylvanian programme directly reimbursed non-public schools for costs of teacher’s salaries, school books and other materials that were devoted to secular subjects. A similar programme in Rhode Island allowed for a 15 % supplement to teachers’ salaries at private schools, given that they taught secular subjects. Delivering the majority opinion, Chief Justice Burger developed a three pronged test by combining criteria from preceding decisions. In order to comply with the Establishment Clause state action must first “have a secular legislative purpose; second, its principle or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive entanglement with religion.”24

After having found that both programmes pursued the secular purpose to enhance the quality of secular education he skipped the second prong and immediately turned to the third one.

Although Chief Justice Burger conceded that some points of contact between state and church are inevitable, necessary and accordingly not objectionable he found the permissible line to be crossed by both programmes.25 Starting with the Rhode Island programme he doubted that teachers under religious control were able to exclude any matters of faith from secular classes at all times given the religious atmosphere they are naturally exposed to in sectarian schools. Additionally the impressionable age of pupils, particularly in primary schools, gives rise to further concerns. Accordingly safety measures have to ensure that the state aid only supports secular education, which were indeed taken by Rhode Island.26 However, the Court went on, unlike a textbook’s content, a teacher’s handling of a subject is not ascertainable once and for all.27 Rather it requires permanent surveillance which involves the excessive and enduring entanglement between state and church the First Amendment seeks to prevent.

Likewise the second programme fostered a too close relationship between state and church. The Pennsylvanian programme was even more defective, as the financial aid went directly form the state to the schools.28 Although having created a test which should be the measure for the courts in cases until today, Chief Justice Burger left the contours of the three prongs, in particular the purpose and effect prong rather unsharp. Hence, its meaning had to be clarified by Courts and scholars.

In order to satisfy the Establishment Clause governmental action has to pursue a clear secular purpose.29 A purpose is not only non-secular just because it coincidently corresponds to the beliefs of a certain religion. Such an understanding would make governmental work almost impossible. Accordingly the term “secular” has to be interpreted very generously.30 Although state action will usually pass this low threshold courts occasionally found the first prong to be violated in cases where the government only pretended to pursue a secular purpose.31 Accordingly the secular purpose must be a substantial one; it does not suffice for the state only to allege a secular purpose.

State action that aims at a legitimate purpose nonetheless violates the Establishment Clause if its essential effect is one that either advances or inhibits religion. This second prong is a necessary corrective to the broadly interpreted purpose prong.32 However, in Everson it was already indicated that laws with purely secular effects are a utopian dream. For instance beneficial laws sometimes confer that benefit to religions too and thereby, inter alia, ease religious practice.33 Yet, withholding that benefit to religions would conflict with the Free Exercise Clause. Accordingly, Courts have refined the Lemon formula: Where secular and religious effects merge the overall effect has to be a secular, neutral one.34 That requires a detailed fact based analysis in which the Court balances all secular and non secular effects, no matter whether they were envisaged or not.35 Only if the latter ones outweigh the former ones a statute satisfies the second prong.

Although the Lemon test in general has always been disputed, it is certainly the entanglement prong that raised most criticism.36 Yet the risk of an excessive state entanglement seems to be primarily related to governmental (private) school aid programs rather than to the problem of officially required school prayers and religious symbols in public schools. Thus the essay will refrain from a more detailed discussion.[37]

(c) Lynch v Donnelly – The Endorsement Test

An utterly new approach was indicated for the first time in Lynch, a case that involved the constitutionality of a Christmas display on town premises, which consisted of a crèche, a Santa Claus house, a Christmas tree and a banner reading "Seasons Greetings”. A five to four majority held the display to be in accordance with the Establishment Clause. Chief Justice Burger, delivering the majority opinion, emphasized not to be confined to any single test or criterion like the Lemon test, but yet four of them applied it in its conventional form.38

Justice O’Connor picked another way instead.39 She still distinguished between the (subjective) purpose and the (objective) effect of a state action but in determining both she found it preferable to ask whether “the government intends to convey a message of endorsement or disapproval of religion”40 or whether a government practice has “the effect of communicating a message of government endorsement or disapproval of religion.”41 Any such endorsement violates the Constitution, since it “sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”42

In her view the Christmas display passed the endorsement test since, “[t]he evident purpose of including the crèche in the larger display was not promotion of the religious content of the crèche but celebration of the public holiday through its traditional symbols”43 and no one contends that “declaration of that holiday is understood to be an endorsement of religion.”44

Five years later the majority in County of Allegheny v American Civil Liberties Union[45], a case that involved the display of a crèche respectively a menorah on public property46, adopted Justice O’Connor’s Endorsement Test , since it provided a “sound analytical framework for evaluating governmental use of religious symbols.”47 In this context he also emphasized that the effect of endorsing or disapproving religious beliefs very much depends on its "particular physical settings.”48

(d) Lee v Weisman – The Coercion Test

In line with a long lasting tradition Lee, the principal of a public school, invited a Rabbi to deliver a non-sectarian invocation and benediction at a graduation ceremony.[49] The Rabbi was asked to comply with a set of guidelines developed by the National Conference of Christian and Jews that inter alia required prayers to be composed with “inclusiveness and sensitivity”. Claiming that the inclusion of such prayers into graduation ceremonies at public schools violates the Establishment Clause Weisman, the father of one of the graduates, sought for intermediate relief which was denied by the lower court for lack of time. Weisman and his daughter attended the non compulsory graduation ceremony, where the prayer was delivered, but yet continued litigation before the Supreme Court.

A five to four split Court denied the prayer’s constitutionality. In his judgment Justice Kennedy, speaking for the majority, neither applied the Lemon50 nor the Endorsement test, but developed a line of argumentation which should later be referred to as the “Coercion Test”. He held that the Establishment Clause at least prohibits to “coerce anyone to support or participate in religion or its exercise.”51 Although also relevant in other settings, he went on to say, “prayer exercises in public schools carry a particular risk of indirect coercion.” In the place at stake he detected two different coercive elements. Though attendance of such ceremonies was not compulsory in a formal sense52, it was so in a “fair and real sense”, given that the “high school graduation is one of life's most significant occasions” and “absence would require forfeiture of those intangible benefits which have motivated the student through youth and all her high school years.”53 The de facto obligation to attend the ceremony was the first element of indirect pressure, which, taken by itself, did not violate the Constitution.

However, once being there, all graduates were in effect also required to participate in the religious exercise. As before, the Court rejected the argument that participation in the prayer was voluntary. In such auspicious and official situations peer and public pressure on the students is high to at least remain silent during the religious exercise which implies at least respect for it, at worst an approval of it. A dissenter may reasonably perceive this as an “attempt to employ the machinery of the State to enforce a religious orthodoxy”54, since the ceremony was directed and monitored by officials attributable to the state.55 A dissenter’s only alternative to participation would be open protest56, which cannot be expected from primary and secondary school children in consistence with the Establishment Clause given the vulnerability of adolescents “to pressure from their peers towards conformity”57. The Court therefore concluded that Weisman’s daughter was coerced to participate in a state-imposed religious exercise.58

In his concurring opinion Justice Blackmum, joined by Justice Stevens and Justice O’Connor, seemingly sought to apply the Endorsement Test. He clarified that a violation of the Establishment does not presuppose an element of coercion.59 Rather the mere mixing of government and religion may already be sufficient if it “conveys a message of exclusion to all those who do not adhere to the favoured beliefs.”60 However, he conceded that coercion certainly delivers such a message.

Apparently Justice Blackmum saw the need to slightly shift the line of argumentation. Although Justice Kennedy held the Establishment Clause to be violated, the dominance of the coercive element in his holding is more a feature of the Free Exercise Clause. Such an approach bears the risk of depriving the Establishment of an independent significance.

Four Justices dissented and found the prayer constitutional. Justice Scalia, writing for them, resisted giving the Establishment Clause a meaning that “would invalidate longstanding traditions”61 of which non-sectarian prayers have always been part of, particularly at graduation ceremonies. Reminding of the need to interpret the Establishment Clause in accordance with history he enumerated examples where the framers of the Constitution themselves made an appraisal to God in official settings. With regard to invocations in parliamentary sessions the Court itself has recently ruled them constitutional and he could see no reason why this tradition has to be abandoned at graduation ceremonies.62 He also took issue with the holding that students are exposed to a psychological coercive pressure, a phenomenon that could not be competently judged by “amateurs”63.

Although the majority ruled the prayer unconstitutional, Justice Scalia was nevertheless optimistic that they will stay part of graduation ceremonies as long as “school authorities make clear that anyone who abstains from screaming in protest does not necessarily participate in the prayers.”64

4. The Free Exercise Clause

The Free Exercise Clause only played a minor role in the here considered cases.65 However, for the sake of completeness its underlying principles shall be outlined briefly.

The purpose of the Free Exercise Clause is the protection of an autonomous sphere in matters of face.66 It generally guarantees and individual to choose a religion, to believe in it and to act pursuant its tenets. Vice versa it also grants the freedom to stay absent from any religion and its practice.67 What also follows from the Establishment Clause also follows from its counterpart: A state may neither punish individuals for holding a belief a non-belief nor may he coerce individuals to adopt a certain belief. However, such obvious encroachments on religion will rarely occur.

As regards the dogma of separation it was already stated that it cannot be maintained in an absolute sense. The same is true for the right to exercise a religion.68 Given that all individual rights are exercised in a larger community, it is apparent that it cannot be granted boundlessly. In pursuit of sound purposes, the state will often take measures that inevitably hamper religious practice.69 Again it is a question of line drawing and it is the “judicial job” to distinguish between permissible and impermissible regulations.

Laws that purposely burden a religion, presumably violate the Constitution.70 The Court will apply strict scrutiny when faced with such a discriminatory law. Generally applicable laws to the contrary are laws that only burden religions accidentally. Only being subject to minimal scrutiny such neutral laws will usually not be invalidated. However, even though a law is generally applicable on its face it may still be unconstitutional if it targets a particular religion under the surface.71

Since a generally applicable law would usually not be struck down by the Court, the claimant had to seek for an exemption to be relieved from the burden the law imposed on him.72 When deciding about an exemption the Court used to apply a two step test to balance the competing interests, that is the right to exercise one’s religion and the state’s interest to enact the law. First the claimant had to prove that the law substantially burdened his religious practice. If he succeeded, it was the state’s turn to show a compelling interest for making the law and not granting an exemption. Was the state not able to do so or could the compelling interest also have been pursued by a less restrictive means the Free Exercise Clause even required the exemption to be granted.73

Whether the balancing test was abandoned in 1990 when Department of Human Resources of Oregon v Smith[74] was decided, is still subject to intense debate.75 Justice Scalia, writing for the majority, held that although the government may well grant an exemption to a generally applicable law, the Free Exercise Clause does not compel it to do so. Only generally applicable laws, which deliberately infringe religious practice, would violate the Free Exercise Clause.76 Any other neutral law, even though substantially burdening a particular religion, stands before the First Amendment without a compelling interest test.77 The judgment has been harshly criticized for its curtailing and undermining effect on religious freedom, particularly of minorities.78


1 The endless list lasts from the persecution of the Jews and Christians in Rome over the one of the Protestants in Europe in the 16th and 17th century to the conflicts between Christians and Muslims in Ex-Yugoslavia or Nigeria.

2 Kommers, D P, John, E F and Jacobsohn, G J American Constitutional Law: Essays, Cases and Comparative Notes (3rd ed, Roman & Littlefield Publishers, Inc., Lanham, Boulder, New York, Toronto, Plymouth, UK, 2010) at 841.

3 The German equivalent to the U.S. Supreme Court is the Federal Constitutional Court.

4 Another area of tension in the interface of religion and education is whether, and if so, under which conditions the state is permitted to subsidize private schools.

5 Unless otherwise provided the term “Constitution” refers to the federal constitution of the United States of America.

6 Russo, C J Reuter’s The Law of Public Education (5th ed, Foundation Press, New York, 2004) at 1.

7 The Basic Law is Germany’s constitution. Yet the drafters did not want to use the term “Constitution” for a document that was only supposed to serve as a transitional framework until the national reunification. In 1990, when the reunification in effect took place, Germany decided to keep the name “Basic Law”, see D P Kommers The Constitutional Jurisprudence of the Federal Republic of Germany (2nd ed, Duke University Press, Durham, London, 1997) at 30.

8 W F Murphy, J E Flaming, A B Sotirios and S Macedo American Constitutional Interpretation (3rd ed, Foundation Press, New York, 2003) at 1247; R A Rossum and G Tarr American Constitutional Law (8th ed, Westview Press, Boulder, CO, 2010) at 286.

9 Tribe, L H American Constitutional Law (The Foundation Press, Mineola New York, 1978) at 812; J E Nowak and R D Rotunda Constitutional Law (7th ed, Thomson West, St. Paul, MN, 2004) at 1408.

10 In Cantwell v Connecticut, 310 U.S. 296 (1940), the Supreme Court applied the Free Exercise Clause against the states. A few years later in Everson v Board of Education, 330 U.S. 1 (1947) the Establishment Clause was also incorporated.

11 Even nowadays the incorporation of the Establishment Clause is not without criticism, see e.g. “Rethinking the Incorporation of the Establishment Clause: A Federalist View” (1991 – 1992) 105 Harvard Law Review 1700, arguing that the Establishment Clause was meant to foreclose any attempt by Congress to disestablish the existing official state churches.

12 Sadly many colonists did not learn their lesson, as many states had established official churches at the time the Constitution was ratified, see supra Fn. 11 at 1703.

13 W F Murphy, J E Flaming, A B Sotirios and S Macedo American Constitutional Interpretation (3rd ed, Foundation Press, New York, 2003) at 1249.

14 P B Kurland “Of Church and State and the Supreme Court” (1961 – 1962) 29 University of Chicago Law Review 1; confining the strict separation to the setting of public schools T Abdel-Monem “Posting the Ten Commandments as a Historical Document in Public Schools” (2002) 87 Iowa Law Review 1023 at 1054 – 1055.

15 L H Tribe American Constitutional Law (The Foundation Press, Mineola New York, 1978) at 819.

16 D Richter “Religious Garments in Public Schools in Separation Systems: France and the United States of America” in W Brugger and M Karayanni (eds.) Religion in the Public Sphere: A Comparative Analysis of German, Israeli, American and International Law (Springer, Berlin, New York, 2007) 199 at 216; D P Kommers, E F John and G J Jacobsohn American Constitutional Law: Essays, Cases and Comparative Notes (3rd ed, Roman & Littlefield Publishers, Inc., Lanham, Boulder, New York, Toronto, Plymouth, UK, 2010); see also Justice Rehnquist in his dissenting opinion in Wallace v Jaffree, 472 U.S. 38 (1985) at 113.

17 Everson v Board of Education, 330 U.S. 1 (1947).

18 Everson also argued that the statute would violate the due process clause, which was, however, not accepted by the Court.

19 Supra Fn. 17, at 13.

20 Ibid at 15 – 16.

21 Ibid at 18.

22 Ibid at 45.

23 Lemon v Kurtzman, 403 U.S. 602 (1971).

24 Ibid at 612.

25 Ibid at 614.

26 The relevant provision of the Act stated that "eligible teachers must teach only courses offered in the public schools, using only materials used in the public schools, and must agree not to teach courses in religion."

27 Supra Fn. 25, at 617.

28 In so far it differed from the programme in Everson, which provided the aid to the families.

29 In fact this prerequisite was already addressed in Everson.

30 L H Tribe American Constitutional Law (The Foundation Press, Mineola New York, 1978) at 835. When testing the secularity of a purpose courts often take the viewpoint of an ”objective observer, acquainted with the text, legislative history, and implementation of the (challenged) statute.” See Justice O’Connor in her concurring opinion in Wallace v Jaffree, 472 U.S. 38 (1985) at 76.

31 See e.g. Stone v Graham, 449 U.S. 39 (1980) (per curiam).

32 That is because the state may either have overlooked certain consequences of its policy, or it may have deliberately opted for a policy that pursues a legitimate goal, but de facto only affects religions, as contemplated by the state.

33 A common example that is often referred to is the provision of police and fire protection, which certainly eases religious actions, too, see Zorach v Clauson, 343 U.S. 306 (1952) at 312. Vice versa prohibitive laws also affect religious groups and thereby may hamper religious actions.

34 Lynch v Donnelly, 465 U.S. 668, (1984).

35 I Muehlhoff “Freedom of Religion in Public Schools in Germany and in the United States” (2000) 28 Georgia Journal of International and Comparative Law 405 at 420 – 421.

36 Whether the Lemon test nowadays is still applicable is not entirely clear, see e.g. Van Orden v Perry where the Supreme Court held the Lemon test as not applicable with regard to “passive monuments”.

37 Lynch v Donnelly, 465 U.S. 668 (1984).

38 Ibid at 679 and 681.

39 The four dissenting Justices followed Justice O’Connor on this way, but reached an opposite conclusion.

40 Supra Fn. 38, at 691.

41 Ibid.

42 Ibid at 692.

43 Ibid at 691.

44 Ibid at 692.

45 492 U.S. 573 (1989).

46 The display with the menorah did not endorse the Jewish belief, because it also contained a huge Christmas tree, a secular symbol of the Christmas holiday season, which dominated the display. In contrast the crèche was found to endorse the Catholic belief, since it stood alone. In this respect it differed from the Lynch case.

47 Supra Fn. 45, at 595.

48 Ibid.

49 Lee v Weisman, 505 U.S. 577 (1992).

50 From the ignorance of the Lemon test Justice Scalia in his concurring opinion even followed its interment, see page 644.

51 Ibid at 577.

52 Attendance was not required to obtain the diploma.

53 Ibid at 579.

54 Ibid 592.

55 Via the guidelines Lee even exerted influence on the prayer’s content.

56 The other alternative to avoid a conflict of conscience would have been to stay away from the ceremony which in the Court’ view would turn “conventional First Amendment analysis on its head. It is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practice”, supra Fn. 54, at 596.

57 Ibid at 593.

58 The Court carefully sought to distinguish prayers in public schools from prayers at the beginning of parliamentary sessions, see Marsh v Chambers, 463 U.S. 783 (1983), which are far less coercive. Not only are parliamentarians adults but also it is far easier for them to stay absent from the session, and hence the prayer.

59 The fact that a coercive element is not necessary for a successful Establishment Clause action was even more openly addressed by Justice Souter in a separate concurring opinion. However, most likely Justice Kennedy did not mean to require a coercive element either, since he said that the Establishment at least prohibits coercion.

60 Supra Fn. 57, at 604.

61 Ibid at 631.

62 Marsh v Chambers, 463 U.S. 783 (1983).

63 Supra, Fn. 61, at 636.

64 Ibid at 645.

65 In the setting of public schools the Free Exercise Clause is more likely to be of relevance when it comes to accommodation of religious practise by providing school property for religious exercises.

66 D P Kommers, E F John and G J Jacobsohn American Constitutional Law: Essays, Cases and Comparative Notes (3rd ed, Roman & Littlefield Publishers, Inc., Lanham, Boulder, New York, Toronto, Plymouth, UK, 2010) at 846.

67 I Muehlhoff “Freedom of Religion in Public Schools in Germany and in the United States” (2000) 28 Georgia Journal of International and Comparative Law 405 at 430.

68 The right to hold the belief to the contrary is granted absolutely, see Abington School District v Schempp, 374 U.S. 203 (1963) at 218.

69 W F Murphy, J E Flaming, A B Sotirios and S Macedo American Constitutional Interpretation (3rd ed, Foundation Press, New York, 2003) at 1252.

70 Supra Fn. 67, at 431. Additionally a violation of the Establishment Clause will most likely also be at issue in such cases.

71 See e.g. Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).

72 It is quite obvious that granting such an exemption bears the risk to conflict with the Establishment Clause. However, the fact that exemptions were granted occasionally shows that the Establishment Clause does not rigorously forbid accommodation of religion.

73 This test was introduced in Sherbert v Verner, 374 U.S. 398 (1963); see also L H Tribe American Constitutional Law (The Foundation Press, Mineola New York, 1978) at 846 – 859.

74 494 U.S. 872 (1990).

75 See R A Rossum and G Tarr American Constitutional Law (8th ed, Westview Press, Boulder, CO, 2010) at 289.

76 The Court sought to distinguish the case at issue from former cases that allowed for an exemption by arguing that the claimant there was able to point at two different rights. This hybrid claim would outweigh the governmental interest. However apart from the fact that cases will often involve such a hybrid claim, the Constitution itself does by no means hint at such a prerequisite.

77 Supra Fn. 74, at 873.

78 In response to Smith Congress enacted the Religious Freedom Restoration Act (1993) in order to restore the compelling state interest test. However, the Supreme Court invalidated it in part, arguing that it intended to “alter the meaning of the free exercise clause”, see City of Boerne v Flores, 521 U.S. 507 (1997).

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Do Constitutions Require Governments to Refrain from Religion in Public Schools? A Comparison Between the U.S., Germany and New Zealand
3 Different Countries, 3 Different Approaches?
University of Auckland
International Law of Human Rights
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ISBN (Book)
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Die Arbeit wurde zur Erlangung eines "LL.M." an der University of Auckland, Neuseeland erstellt. Jeweils im Anschluss an eine Blockveranstaltung waren dafür vier derartiger "Research Paper" anzufertigen. Die erzielte Note "A-" entspricht auf einer deutschen Notenskala einer "1,7".
Comparative Law, Constitutional Law, Religious Freedom, Crucifix;, United States, Germany, New Zeland, Public schools, Headscarf
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LL.M. Sebastian Röder (Author), 2010, Do Constitutions Require Governments to Refrain from Religion in Public Schools? A Comparison Between the U.S., Germany and New Zealand, Munich, GRIN Verlag,


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