Dissent in Zelman v. Simmons-Harris

The First Amendment begins with a prohibition, that "Congress shall make no law respecting an establishment of religion," and a guarantee, that the government shall not prohibit "the free exercise thereof." These Clauses embody an understanding, reached in the 17th century after decades of religious war, that liberty and social stability demand a religious tolerance that respects the religious views of all citizens, permits those citizens to "worship God in their own way," and allows all families to "teach their children and to form their characters" as they wish.

In part for this reason, the Court's 20th century Establishment Clause cases—both those limiting the practice of religion in public schools and those limiting the public funding of private religious education—focused directly upon social conflict, potentially created when government becomes involved in religious education.

[T]he Court concluded that the Establishment Clause required "separation," in part because an "equal opportunity" approach was not workable... [D]iversity made it difficult, if not impossible, to devise meaningful forms of "equal treatment" by providing an "equal opportunity" for all to introduce their own religious practices into the public schools.

The upshot is the development of constitutional doctrine that reads the Establishment Clause as avoiding religious strife, not by providing every religion with an equal opportunity (say, to secure state funding or to pray in the public schools), but by drawing fairly clear lines of separation between church and state—at least where the heartland of religious belief, such as primary religious education, is at issue.

The principle underlying these cases—avoiding religiously based social conflict—remains of great concern. As religiously diverse as America had become when the Court decided its major 20th century Establishment Clause cases, we are exponentially more diverse today...

Excerpt from Justice Breyer, with whom Justice Stevens and Justice Souter join, dissenting. Zelman v. Simmons-Harris, 536 U.S. 639 (2002).


Focus Questions:

1. From Justice Breyer's discussion we can conclude that while the Framers were concerned about individual rights, they were also concerned with a greater public good in crafting the Establishment and the Free Exercise Clauses. Why do you think these dual concerns are so difficult in the area of religion for Congress and courts to reconcile today?

2. How can the three branches of government work together to mediate religiously-based social conflict and uphold our constitutional principles?

3. Do you agree with Justice Breyer that avoiding religiously based social conflict is still a matter of great concern in the United States today? Why?

4. Do you think it is easier or harder to avoid religiously based social conflict in a country that is "exponentially more [religiously] diverse"? Why?

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