The First Amendment and State Bans on Teachers' Religious Garb: Analyzing the Historic Origins of Contemporary Legal Challenges in the United States

Cover
Half Title
Series
Title
Author Biography
Copyright
Contents
List of Tables
Foreword
Acknowledgments
Glossaries
Preface
I – The Problem and the Plan
	What Are Anti-Religious-Garb Laws?
	What Legally Grounds This Study?
	Historical Context: A Perennial Legal Problem
	Global Context: A Pervasive Legal Problem
	Designing This Study
II – How Did We Get Here?
	The Problem From Five Vantage Points
		1. Contributions of Legal Experts
		2. Contributions of Government Officials
		3. Contributions of Educators and Education Associations
		4. Contributions of Religious and Civil Liberties Groups
		5. Contributions of Journalists
	Evolution of State and Federal Court Decisions
		Enumerating Causes of Action in Anti-Religious- Garb Cases
		Origins of Anti-Religious-Garb Laws and Cases: 1894 to 1910
		Expansion of Statutes and Policies: 1910 to 1946
		Conflicting Legal Developments in States: 1936 to 1956
		Discussion of Developments in State Laws: 1894 to 1956
		Contemporary Federal and State Decisions: 1986 to 2018
III – What Are the Constitutional Standards?
	The No Religious Test for Office of 1787
	The First Amendment to the U.S. Constitution of 1791
	Incorporating First Amendment Rights to State Laws
		Incorporating the Free Exercise Clause to the States
		Incorporating the Establishment Clause to the States
	Judicial Standards for Establishment Clause Cases
		The Lemon Test
		The Endorsement Test
		The Neutrality Test
		The Coercion Test
		Classifying an Establishment Case
		Summary of Establishment Tests
	Judicial Standards for Free Exercise Cases
		The Origins of the Strict Scrutiny Test
		From Rational Basis to Strict Scrutiny
		Extending Strict Scrutiny to Religion
		The Sherbert Standard
		The Yoder Exemption
		The Neutral and General Applicability Standard
	Smith’s Shadow: Developments in Federal and State Statutes
		The Constitutional Limitations of Restoring Religious Freedom
		Title VII of the Civil Rights Act of 1964
		Increased Reliance on Religion Clauses in state constitutions
		The Origins of the Religious Animosity Principle
		Applications of the Religious Animosity Principle
	Synopsis
IV – How Do We Proceed?
	Step 1. Synthesize Judicial Tests by Cause of Action
	Step 2. Collect Primary and Secondary Source Documents
	Step 3. Articulate Narrow Legal Questions
	Step 4. Set Factual Parameters
		Limited Inquiry Into Pennsylvania’s Anti-Garb Statute
		Pennsylvania Religious-Garb-Wearing Teachers Have Standing
		Teachers Are Paid Like All Other Teachers
		State-Employed, State-Examined, State-Certified Teachers
		State Schools, Not Federal Schools
		Defining Teacher
		Satisfactory Performance
		Defining Religious Garb
		No Evidence That Religious Garb, Alone, Coerces Observers
		No Evidence of Religious Instruction
		Overview of Factual Parameters
	Step 5. Conduct Legal Analysis
	Summary of the Five-Step Action Plan
V – What Are the Establishment Clause Arguments?
	Does the Statute Have a Secular Purpose?
		The Statute Seeks to Create a Secular School Culture
		The Statute Seeks to Avoid a “Religious Takeover”
		The Statute Promotes Public Safety in Public Schools
	Is the Primary Effect to Advance or Inhibit Religion?
		No, It Does Not Have the Primary Effect of Advancing Religion
		No, the Statute Does Not Inhibit Religion
		And yet, the Statute Advance Some Religions Over Others
		Yes, the Primary Effect Is to Inhibit Religion
	Does the Statute Foster an Excessive Entanglement?
		No, the Statute Prevents Entangling Public Funds for Religion
		The State Misconstrues the Meaning of Entanglement
	Does the Statute Endorse or Favor Religion?
		No, the Statute Avoids the Perception of Endorsement or Favoritism
		The State Misconstrues the Meaning of Endorsement and Favoritism
	Does the Statute Result in Religious Coercion?
		Yes, the Statute Coerces Teachers
		No, the Prohibition Prevents the Coercion of Students
		The Statute Prevents Religious Indoctrination
		The Statute Prevents Religious Instruction
		The Statute Protects Impressionable Students
	Summary of Establishment Clause Arguments
		Establishment Clause Arguments Made by the State
		Establishment Clause Arguments Made by the Teachers
VI – What Are the Free Exercise Clause Arguments?
	Is the Statute Neutral and Generally Applicable?
		No, the Statute Targets Religious Conduct for Government Regulation
	Is there Evidence of Religious Animosity?
		Yes, Anti-Religious-Garb Statutes Originated From Anti-Catholic Bias
		Yes, the Statute Continues to Express Religious Animosity
	Does Strict Scrutiny Apply to Public Schoolteachers?
		No, Strict Scrutiny Is Not Applicable to State Employees
		Yes, the Nature of the Statute Triggers Strict Scrutiny
	Does the Statute Substantially Burden Religion?
		Yes, It Burdens Religious Garb-Wearing Teachers Through Legal Penalties
		Yes, It Burdens School Directors for Failing to Comply
		Yes, the Statute Burdens Women Disproportionately
		Yes, It Burdens Religious Minorities Disproportionately
		Yes, It Burdens Some Religions Over Other Religions
		Yes, It Burdens Religion Over Nonreligion
		Yes, It Burdens Communities With Religious Segregation
		Summary
	Does the State Have a Compelling Interest in Burdening Religion?
		Yes. (See State’s Answers to Establishment Clause Questions.)
	Is the Statute Narrowly Tailored to Achieve the Least Restrictive Means?
		The Statute Is a Limited Time/Place Restriction
		No, the Statute is Not Narrowly Tailored
VII – Discussion and Decision
	The Statute Provides No Least Restrictive Alternative
	State Employees’ Religious Garb Is a Compelling State Interest
	The “Religious Takeover” Argument Must Be Rational
	Safety Regulations Must Be Rational
	Safety Regulations Must Be Narrowly Tailored
	Historic Decisions Predate Strict Scrutiny Test
	Contemporary Decisions Were Caught in Smith’s Shadow
	Public Salaries Have “No Bearing” on Teachers’ Private Donations
	The State Must Prove Excessive Entanglement
	Secularism, Sectarianism, and Separatism Are Not the Same
	The State Must Provide Evidence That Garb Alone Coerces
	Religious Garb Is Not Indoctrination
	Religious Garb Cannot Be Used for Religious Instruction
	Yes, Students Are Impressionable: But in What Way?
	New Purpose: Prepare Students to Self-Govern a Nation of Religious Minorities
VIII – What Have We Learned?
	The Statute Violates the Establishment Clause
		The Statute Failed the Lemon Test
		The Statute Failed the Endorsement Test
		The Statute Failed the Coercion Test
	The Statute Violates the Free Exercise Clause
		The Statute Is Neither Neutral Nor Generally Applicable
		The Statute Failed the Religious Animosity Test
		The Statute Failed the Substantial Burden Test
		The Rational Basis Test Requires Reasonable Arguments
		The Statute Failed the Compelling Interest Test
		The Statute Failed the Narrowly Tailored Test
		Strict Scrutiny Is “Strict in Theory and Fatal in Fact”
	Need for Research on Students’ Impressions of Religious Garb
Case Abbreviations
Index