NEWDOW et al v. ROBERTS et al

Filing 4

MOTION for Preliminary Injunction by ROBERT SHERMAN, MARGARET DOWNEY, AUGUST BERKSHIRE, MARIE CASTLE, STUART BECHMAN, MICHAEL NEWDOW, HERB SILVERMAN, JASON TORPY, HARRY GREENBERGER, KIRK HORNBECK, JIM CORBETT, CATHERINE LAMM, RICHARD WINGROVE, CHRISTOPHER ARNTZEN, JOHN STOLTENBERG, KATHERINE LACLAIR, ELLERY SCHEMPP, LOUIS ALTMAN, PAUL CASE, JERRY SCHIFFELBEIN, ANNE PHILIP, JAY RICHARDSON, DAN DUGAN, ANNA MAE ANDREWS, ELIZA SUTTON, RICHARD RESSMAN, AMERICAN HUMANIST ASSOCIATION, MEL LIPMAN, FREEDOM FROM RELIGION FOUNDATION, MILITARY ASSOICAITON OF ATHEISTS & FREETHINKERS, MINESOTA ATHEISTS, ATHEISTS FOR HUMAN RIGHTS, ATHEIST ALLIANCE INTERNATIONAL, ATHEISTS UNITED, NEW ORLEANS SECULAR HUMANIST ASSN, UNIVERSITY OF WASHINGTON SECULAR STUDENT UNION, SEATTLE ATHEISTS, ATHEISTS OF FLORIDA, DAN BARKER, ANNIE-LAURIE GAYLOR (Attachments: # 1 Appendix A, # 2 Appendix B, # 3 Appendix C)(Ritter, Robert)

APPENDIX C
"[G]overnment inculcation of religious beliefs has the impermissible effect of advancing religion." Agostini v. Felton, 521 U.S. 203, 223 (1997). "[G]iving sectarian religious speech preferential access to a forum close to the seat of government (or anywhere else for that matter) would violate the Establishment Clause." Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 766 (1995). "[T]he State may not espouse a religious message." Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 799 (Stevens, J., dissenting). "`Primary among those evils' against which the Establishment Clause guards `have been sponsorship, financial support, and active involvement of the sovereign in religious activity.'" Rosenberger v. University of Virginia, 515 U.S. 819, 874 (1995) (Souter, J., dissenting) (citations omitted). "[A] principle at the heart of the Establishment Clause [is] that government should not prefer one religion to another, or religion to irreligion." Board of Education of Kiryas Joel v. Grumet, 512 U.S. 687, 703 (1994). "A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernible from the language or context." Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 533 (1993). "But it is not enough that the government restrain from compelling religious practices: It must not engage in them either." Lee v. Weisman, 505 U.S. 577, 604 (1992) (Blackmun, J., concurring). "[T]he Constitution ... demands that the State not take action that has the primary effect of advancing religion." Westside Community Bd. of Ed. v. Mergens, 496 U.S. 226, 263 (1990) (Marshall, J., concurring). "[T]he longstanding constitutional principle [is] that government may not engage in a practice that has the effect of promoting or endorsing religious beliefs." Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 621 (1989). "We have, on the contrary, interpreted that Clause to require neutrality, not just among religions, but between religion and nonreligion." Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 644 (1989) (Brennan, J., concurring).

Newdow v. Roberts

PI Memorandum Appendix C

January 5, 2009

Page 1 of 4

"[T]he religious liberty so precious to the citizens who make up our diverse country is protected, not impeded, when government avoids endorsing religion or favoring particular beliefs over others." Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 631 (1989) (O'Connor, J., concurring). "[D]isplays of this kind inevitably have a greater tendency to emphasize sincere and deeply felt differences among individuals than to achieve an ecumenical goal. The Establishment Clause does not allow public bodies to foment such disagreement." Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 651 (1989) (Stevens, J., concurring). "Our country has become strikingly multireligious as well as multiracial and multiethnic. This fact, perhaps more than anything one could write, demonstrates the wisdom of including the Establishment Clause in the First Amendment." Edwards v. Aguillard, 482 U.S. 578, 607 (1987) (Powell, J., concurring) (at note 6). "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 non-religion." Grand Rapids School District v. Ball, 473 U.S. 373, 382 (1985). "[T]he established principle [is] that the government must pursue a course of complete neutrality toward religion." Wallace v. Jaffree, 472 U.S. 38, 60 (1985). "The endorsement test ... does preclude government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred." Wallace v. Jaffree, 472 U.S. 38, 70 (1985) (O'Connor, J., concurring). "[W]hen ... officials participate in or appear to endorse the distinctively religious elements of this otherwise secular event, they encroach upon First Amendment freedoms." Lynch v. Donnelly, 465 U.S. 668, 711 (1984) (Brennan, J., dissenting). "[W]e have repeatedly held that any active form of public acknowledgment of religion indicating sponsorship or endorsement is forbidden." Lynch v. Donnelly, 465 U.S. 668, 714 (1984) (Brennan, J., dissenting). "[T]he core rationale underlying the Establishment Clause is preventing `a fusion of governmental and religious functions.'" Larkin v. Grendel's Den, Inc., 459 U.S. 116, 126 (1982). "Our decisions under the Establishment Clause prevent government from supporting or involving itself in religion." McDaniel v. Paty, 435 U.S. 618, 642 (1978) (Brennan, J., concurring).

Newdow v. Roberts

PI Memorandum Appendix C

January 5, 2009

Page 2 of 4

"The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice" Lemon v. Kurtzman, 403 U.S. 602, 625 (1971). "[The Court] has consistently held that the [Establishment] clause withdrew all legislative power respecting religious belief or the expression thereof." Abington School District v. Schempp, 374 U.S. 203, 222 (1963). "In each case the State is conducting a religious exercise; and, as the Court holds, that cannot be done without violating the `neutrality' required of the State by the balance of power between individual, church and state that has been struck by the First Amendment." Abington School District v. Schempp, 374 U.S. 203, 229 (1963) (Douglas, J., concurring). "The fullest realization of true religious liberty requires that government neither engage in nor compel religious practices, that it effect no favoritism among sects or between religion and nonreligion, and that it work deterrence of no religious belief." Abington School District v. Schempp, 374 U.S. 203, 305 (1963) (Goldberg, J., concurring). "[R]eligious exercises ... become constitutionally invalid only if their administration places the sanction of secular authority behind one or more particular religious or irreligious beliefs." Abington School District v. Schempp, 374 U.S. 203, 317-318 (1963) (Stewart, J., dissenting). "[G]overnment in this country, be it state or federal, is without power to prescribe by law any particular form of prayer which is to be used as an official prayer in carrying on any program of governmentally sponsored religious activity." Engel v. Vitale, 370 U.S. 421, 430 (1962). "When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. But the purposes underlying the Establishment Clause go much further than that. Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and degrade religion." Engel v. Vitale, 370 U.S. 421, 431 (1962). "There cannot be the slightest doubt that the First Amendment reflects the philosophy that Church and State should be separated. And so far as interference with the `free exercise' of religion and an `establishment' of religion are concerned, the separation must be complete and unequivocal. The First Amendment within the scope of its coverage permits no exception: the prohibition is absolute." Zorach v. Clausen, 343 U.S. 306, 312 (1952).

Newdow v. Roberts

PI Memorandum Appendix C

January 5, 2009

Page 3 of 4

"Any use of such coercive power by the state to help or hinder some religious sects or to prefer all religious sects over nonbelievers or vice versa is just what I think the First Amendment forbids. In considering whether a state has entered this forbidden field the question is not whether it has entered too far but whether it has entered at all." Zorach v. Clausen, 343 U.S. 306, 318 (1952) (Black, J., dissenting). "Separation is a requirement to abstain from fusing functions of Government and of religious sects, not merely to treat them all equally." McCollum v. Board of Education, 333 U.S. 203, 227 (1948).(Frankfurter, J., dissenting). "[W]e have staked the very existence of our country on the faith that complete separation between the state and religion is best for the state and best for religion." Everson v. Board of Education, 330 U.S. 1 (1947) (Rutledge, J., dissenting). "Religion is outside the sphere of political government." West Virginia Board of Education v. Barnette, 319 U.S. 624, 654 (1943) (Frankfurter, J., dissenting).

Newdow v. Roberts

PI Memorandum Appendix C

January 5, 2009

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