In Search of Religious Liberty

This chapter discusses the origins of the Zobrests’ lawsuit against their public school district in Tucson, which refused on constitutional grounds to pay for Jim’s sign language interpreter in a Catholic school. For the Zobrests, federal disability laws and the First Amendment’s Free Exercise Clause entitled Jim to have this essential service. What follows is an analysis of the zigzag line of thinking employed by the U.S. Supreme Court as it grappled with church-state issues in the twentieth century prior to its consideration of the Zobrest case. For years, two titans of constitutional law—Catholic neoconservative William Bentley Ball and civil libertarian Leo Pfeffer—battled over what was legally permissible with regard to freedom of religion. Ultimately, the court enunciated a controversial Lemon Test to address this thorny area of its jurisprudence.

The Aftermath

Chapter 6 traces the impact of the Zobrest decision, as precedent, on U.S. Supreme Court Establishment Clause doctrine and on the practices of public school districts throughout the United States; and it discusses the lives of the Zobrest family since the decision. While strict separationists, such as the leaders of Americans United, predicted the decision would profoundly remake the meanings of the Establishment Clause in the critical area of the sharing of public resources with religiously affiliated schools, William Bentley Ball was closer to being correct, believing the decision would have an incremental impact, pushing the court modestly toward a less strict standard than had prevailed under the Lemon Test. The most important of the decisions growing out of the Zobrest lawsuit, Agostini v. Felton, is discussed.

Under the Law: 2018–2019 Supreme Court highlights

Julie Underwood highlights three cases from the 2018-2019 U.S. Supreme Court term that have implications for education. In American Legion v. American Humanist Association (2019), the Court ruled that a cross on public land honoring World War I soldiers was not a violation of the Establishment Clause. In this ruling, the Justices criticized the Lemon test often used in cases related to religion in schools, but they did not invalidate it entirely. In Kisor v. Wilkie (2019), Justices expressed the belief that the Court should defer to administrative agencies in interpreting complex regulations and administrative guidance. This leaves room for the Department of Education and other agencies to reinterpret regulations for political or ideological reasons. In Department of Commerce v. State of New York (2019), the Court ruled that a citizenship question on the U.S. Census is acceptable, but the that Department of Commerce did not provide an acceptable reason for the decision. The outcome of this case could affect the census count, which would then affect how education funding is allocated.

Education and Law

Chapter 1 illuminates the educational and legal contexts in which yoga and meditation entered the U.S. cultural mainstream. Beginning in the seventeenth century, public schools taught Protestant Christianity. Since the mid-twentieth century, public schools have been tasked by courts with providing a secular education and by educational reformers with shaping moral character and ethical behavior. Yoga and meditation appeal to educators because they promise not only to enhance physical, mental, and emotional health but also to instill morality and ethics without promoting religion. The U.S. Supreme Court issued a series of landmark rulings, among them Engel v. Vitale (1962) and School of Abington Township v. Schempp (1963), that prohibited public schools from endorsing religious practices such as prayer and Bible reading. The Court developed constitutional tests, the Lemon test, endorsement test, and coercion test, for identifying violations of the Establishment Clause of the First Amendment, based on principles of religious voluntarism, equality, and nondiscrimination. Through the federal cases Malnak v. Yogi (1979) and United States v. Meyers (1996), courts developed the Malnak-Meyers indicia of religion. In 2008, the Equal Employment Opportunity Commission (EEOC) identified the imposition of yoga and meditation as reverse religious discrimination.

An Exegesis of the IRC §107 Housing Exclusion

ABSTRACT The tax treatment of clergy housing allowances continues to be at the forefront of criticism and debate, on the premise it results in taxpayer inequity. IRC §107 allows clergy to exclude a parsonage allowance from gross income. A historical context and modern-day application of the law, based on clergy (spouse) interviews, is provided. The current legal tenor suggests the housing allowance is unconstitutional because it violates the Establishment Clause. Entanglement (based on the three-prong Lemon Test) is analyzed. The analysis results in a double-edged sword. It appears the exclusion fails the Establishment Clause, but abolishment of the exclusion would create additional taxpayer inequities. We propose both abolishing IRC §107 and amending IRC §119.