Non-preference, non-discrimination, and religious neutrality

Cal. Constitution Art. I secs. 4, 8

CALIFORNIA CONSTITUTION

ARTICLE 1 DECLARATION OF RIGHTS

SECTION 1. All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy

SEC. 4. Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State. The Legislature shall make no law respecting an establishment of religion. A person is not incompetent to be a witness or juror because of his or her opinions on religious belief

SEC. 8. A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin.

ARTICLE 9 EDUCATION

SEC. 8. No public money shall ever be appropriated for the support of any sectarian or denominational school, or any school not under the exclusive control of the officers of the public schools; nor shall any sectarian or denominational doctrine be taught, or instruction thereon be permitted, directly or indirectly, in any of the common schools of this State.

ARTICLE 16 PUBLIC FINANCE

SEC. 5. Neither the Legislature, nor any county, city and county, township, school district, or other municipal corporation, shall ever make an appropriation, or pay from any public fund whatever, or grant anything to or in aid of any religious sect, church, creed, or sectarian purpose, or help to support or sustain any school, college, university, hospital, or other institution controlled by any religious creed, church, or sectarian denomination whatever; nor shall any grant or donation of personal property or real estate ever be made by the State, or any city, city and county, town, or other municipal corporation for any religious creed, church, or sectarian purpose whatever; provided, that nothing in this section shall prevent the Legislature granting aid pursuant to Section 3 of Article XVI.

 

Gospel Army v. City of Los Angeles (1945), 27 Cal.2d 232

TRAYNOR, J.

Certain ordinances of the City of Los Angeles regulate transactions in secondhand goods and solicitations for charitable purposes. Plaintiff, an incorporated religious organization, brought this suit to enjoin the enforcement of these ordinances as applied to it on the ground they abridged its religious liberty in violation of the Constitution of the United States and the Constitution of California. The trial court found that plaintiff is “engaged exclusively in the promulgation, by literature and word of mouth, of its religious beliefs, by and through its auxiliaries, and in the procuring of donations in the form of money and articles of value in the prosecution and furtherance of its religious activities.” It enjoined defendants from “further interference and threatened acts, which would in any way prevent the free exercise of the religious liberty and freedom of worship of the said Plaintiff.” Defendants appeal.

Regulation of the business of junk dealers and secondhand dealers is designed to protect the public interest by preventing such dealers from becoming outlets for stolen goods. No question arises as to the constitutionality of such regulation when the business regulated is not carried on by a religious organization. Business carried on by a religious organization cannot be differentiated, for the reasons set forth below with respect to the validity of the regulation of plaintiff’s solicitation of funds for charity.

Many activities prompted by religious motives can hardly be differentiated from secular activities. If the applicability of government regulation turned on the religious motivation of activities, plausible motivations would multiply and in the end vitiate any regulation. Activities characteristic of the secular life of the community may properly be a concern of the community even though they are carried on by a religious organization. Religious organizations engage in various activities such as founding colonies, operating libraries, schools, wineries, hospitals, farms, industrial and other commercial enterprises. Conceivably they may engage in virtually any worldly activity, but it does not follow that they may do so as specially privileged groups, free of the regulations that others must observe. If they were given such freedom, the direct consequence of their activities would be a diminution of the state’s power to protect the public health and safety and the general welfare. With that power so easily diminished there would soon cease to be that separation of church and state underlying the constitutional concept of religious liberty.

The issue presented is one of law, namely, whether the charitable purposes for which plaintiff solicits funds are exclusively religious purposes within the meaning of the ordinance. The trial court erroneously concluded that because plaintiff solicits funds for charitable purposes as part of its religious program its solicitations are solely for religious purposes within the meaning of the ordinance. The ordinance specifically differentiates charitable from religious purposes. No person may solicit “any contribution for any charitable purpose” without complying with the requirements of the ordinance. The ordinance does not exempt solicitations for charitable purposes undertaken by religious organizations. Solicitations for charitable purposes, namely, for “philanthropic, social service, benevolent, patriotic” purposes, are subject to regulation whether or not they are undertaken by a religious organization. The intention to maintain a sharp differentiation between charitable and religious purposes is apparent in the provision that if a solicitation for religious purposes is likely to give the public the impression that funds are sought for charity, the board shall “investigate the matter of such solicitation and give publicity to its findings thereon in such manner as it may deem best to advise the public of the facts of the case.” The solicitation of funds to provide food, shelter, and clothing for those in distress is clearly for a charitable purpose and is therefore regulated by the ordinance. Plaintiff admittedly solicits funds for the purpose of giving relief to persons in distress. Since this purpose is charitable within the meaning of the ordinance, plaintiffs’ solicitations for that purpose are subject to the ordinance.

The judgment is reversed.

 

Cory v. Cory (1945), 70 Cal.App.2d 563

Cory v. Cory (1945), 70 Cal.App.2d 563, 161 P.2d 385

ADAMS, P. J.

On April 13, 1943, in an action for divorce brought by Kathleen B. Cory against Melvin H. Cory, an interlocutory decree of divorce was granted to plaintiff on the grounds of defendant’s extreme cruelty, defendant having been served with summons and failed to appear. The custody of two minor children of the parties, a boy aged about 5 years and a girl aged about 2 1/2 years, was awarded to plaintiff. On or about April 24, 1944, Melvin H. Cory filed a notice of motion to modify the aforementioned interlocutory decree, and in support thereof filed an affidavit in which he averred that the place where the children were living was an unfit and improper place, that plaintiff was a member of the Jehovah Witness sect and was teaching the children to disrespect the United States of America and the flag of the United States; . . . that he (defendant) had a good place to keep said children where they would be taught to respect the United States and its flag, and that it would be to the best interest of said children that their custody be awarded to him.

A hearing was had on May 23 and 24, 1944, at the conclusion of which the court filed findings of fact and conclusions of law in which it was found as follows: “3. That the plaintiff has been teaching the said minor children to refuse to give allegiance to the flag of the United States and to the United States, and to refuse to defend the flag and to refuse to defend the United States against its enemies when at war; . . . ”That for the reasons stated the mother is not a fit and proper person to have the sole custody of the said children, but on the other hand the father is a fit and proper person to have their care and custody after they reach school age of six years.”

The conclusion seems inescapable that appellant has been deprived of the custody of said children solely because she is a Jehovah’s Witness, and, in the opinion of the trial court, the beliefs of the followers of that faith are inimical to the welfare of their children because they do not salute the flag and are unwilling to fight for their country. it is patent that both respondent and the trial court are of the opinion that the religious teachings of appellant are incompatible with what they consider the “principles of good citizenship.”

We think that in this case the trial court — probably because of his own intense patriotism and loyalty to his country in time of war, and a not unnatural irritation at the attitude of mind of persons who, though they blandly accept the protection of a government which guarantees them the right to religious freedom, are unwilling to fight for its preservation, and who in the light of the present world conflict still insist that by inaction their rights and their lives will be preserved by a divine Providence without the necessity of fighting for them — lost sight of the constitutional provisions which guarantee religious freedom to all,⁸ and, in depriving this mother of the custody of her children because of her religious convictions, has deprived her of a constitutional right which she may not be compelled to exercise only conditionally, and in so doing has exceeded the bounds of wise judicial discretion.

The order appealed from is reversed.

[Vacated on other grounds by Cory v. Cory, 71 Cal.App.2d 309 162 P.2d 497 (1945)].

 

People v. Woody (1964), 61 Cal.2d 716

Opinion by Tobriner, J.

On April 28, 1962, a group of Navajos met in an Indian hogan in the desert near Needles, California, to perform a religious ceremony which included the use of peyote. Police officers, who had observed part of the ceremony, arrested defendants, who were among the Indians present. Defendants were later convicted of violating section 11500 of the Health and Safety Code, which prohibits the unauthorized possession of peyote. We have concluded that since the defendants used the peyote in a bona fide pursuit of a religious faith, and since the practice does not frustrate a compelling interest of the state, the application of the statute improperly defeated the immunity of the First Amendment of the Constitution of the United States.

Although the prohibition against infringement of religious belief is absolute, the immunity afforded religious practices by the First Amendment is not so rigid. But the state may abridge religious practices only upon a demonstration that some compelling state interest outweighs the defendants’ interests in religious freedom.

The first step requires an exploration into the particulars of this case to determine whether section 11500 of    the Health and Safety Code imposes any burden upon the free exercise of defendants’ religion. An examination of the record as to the nature of peyote and its role in the religion practiced by defendants as members of the Native American Church of California compels the conclusion that the statutory prohibition most seriously infringes upon the observance of the religion. As the anthropologists have ascertained through conversations with members, the theology of the church combines certain Christian teachings with the belief that peyote embodies the Holy Spirit and that those who partake of peyote enter into direct contact with God. Although peyote serves as a sacramental symbol similar to bread and wine in certain Christian churches, it is more than a sacrament. Peyote constitutes in itself an object of worship; prayers are directed to it much as prayers are devoted to the Holy Ghost. On the other hand, to use peyote for nonreligious purposes is sacrilegious. Members of the church regard peyote also as a “teacher” because it induces a feeling of brotherhood with other members; indeed, it enables the participant to experience the Deity. Finally, devotees treat peyote as a “protector.” Much as a Catholic carries his medallion, an Indian G.I. often wears around his neck a beautifully beaded pouch containing one large peyote button.

The record thus establishes that the application of the statutory prohibition of the use of peyote results in a virtual inhibition of the practice of defendants’ religion. To forbid the use of peyote is to remove the theological heart of Peyotism. Having reached this conclusion, we must undertake the second step in the analysis of the constitutional issue: a determination of whether the state has demonstrated that “compelling state interest” which necessitates an abridgement of defendants’ First Amendment right.

The state’s showing of “compelling interest” cannot lie in untested assertions that recognition of the religious immunity will interfere with the enforcement of the state statute. We have weighed the competing values represented in this case on the symbolic scale of constitutionality. On the one side we have placed the weight of freedom of religion as protected by the First Amendment; on the other, the weight of the state’s “compelling interest.” Since the use of peyote incorporates the essence of the religious expression, the first weight is heavy. Yet the use of peyote presents only slight danger to the state and to the enforcement of its laws; the second weight is relatively light. The scale tips in favor of the constitutional protection.

We know that some will urge that it is more important to subserve the rigorous enforcement of the narcotic laws than to carve out of them an exception for a few believers in a strange faith. They will say that the exception may produce problems of enforcement and that the dictate of the state must overcome the beliefs of a minority of Indians. But the problems of enforcement here do not inherently differ from those of other situations which call for the detection of fraud. On the other hand, the right to free religious expression embodies a precious heritage of our history. In a mass society, which presses at every point toward conformity, the protection of a self-expression, however unique, of the individual and the group becomes ever more important. The varying currents of the subcultures that flow into the mainstream of our national life give it depth and beauty. We preserve a greater value than an ancient tradition when we protect the rights of the Indians who honestly practiced an old religion in using peyote one night at a meeting in a desert hogan near Needles, California.

The judgment is reversed.

[Because the opinion in Woody rested exclusively on the First Amendment and federal precedent construing it, it was effectively overruled by Employment Division v. Smith, 494 U.S. 872 (1990)]

 

Catholic Charities of Sacramento v. Superior Court (2004), 32 Cal.4th 527

WERDEGAR, J.

In this case, we address a church-affiliated employer’s constitutional challenges to the Women’s Contraception Equity Act (WCEA),1 under which certain health and disability insurance contracts must cover prescription contraceptives. The plaintiff employer, which opposes contraceptives on religious grounds, claims the statute violates the establishment and free exercise clauses of the United States and California Constitutions. The lower courts rejected the employer’s claims. We affirm.

[Both Justice Werdegar’s majority opinion and Justice Brown’s dissent devoted most of their attention to questions of federal free exercise and establishment challenges. They relied principally on the “neutral law of general applicability” criterion mandated by Employment Division v. Smith, 494 U.S. 872 (1990). The excerpts that follow relate solely to the opinions’ discussion of the free exercise provisions of the California Constitution, Art. I, § 4.]

4. California Constitution

Catholic Charities’ final argument for applying strict scrutiny invokes the free exercise clause of the California Constitution. That clause, Catholic Charities contends, forbids the state to burden the practice of religion, even incidentally, through a neutral, generally applicable law, unless the law in question serves a compelling governmental interest and is narrowly tailored to achieve that interest. Catholic Charities asserts, in other words, that we must interpret the California Constitution the same way the United States Supreme Court interpreted the federal Constitution’s free exercise clause in Sherbert v. Verner, 374 U.S. 398 (1963).

What might be the proper standard of review for challenges to neutral, generally applicable laws under the state Constitution’s free exercise clause is a question we left open in Smith v. Fair Employment & Housing Com. (1996) 12 Cal.4th 1143. There we rejected, under both federal and state law, a landlord’s religiously based claim to exemption from a fair housing statute prohibiting discrimination on the basis of marital status. Although the case arose after the [United States Supreme] court’s decision in Smith, we nevertheless applied strict scrutiny to the landlord’s federal claim because the Religious Freedom Restoration Act required us to do so. We did not decide whether the landlord’s claim under the state Constitution’s free exercise clause required strict scrutiny. A plurality of three justices assumed for the sake of argument that it did, but declined to “address the scope and proper interpretation of California Constitution, article I, section 4.” “These important questions,” the plurality wrote, “should await a case in which their resolution affects the outcome.” Justice Mosk’s concurring opinion provided a fourth vote for the disposition.

Certainly the high court’s decision in Smith, does not control our interpretation of the state Constitution’s free exercise clause. Neither does the decision in Sherbert. We have observed many times “that the meaning of the California Constitution article I, section 4… is not dependent on the meaning of any provision of the federal Constitution. The state charter declares in so many words that ‘rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.’ (Cal. Const., art. I, § 24.) ‘Respect for our Constitution as ‘a document of independent force’ forbids us to abandon settled applications of its terms every time changes are announced in the interpretation of the federal charter.’ ” Thus, if a settled interpretation of the California Constitution’s free exercise clause had existed before 1990, when the United States Supreme Court abandoned the Sherbert test, we would simply adhere to that interpretation, regardless of Smith.

However, no settled interpretation of the state Constitution’s free exercise clause existed in 1990. Between the dates of Sherbert, and Smith, our own decisions assessing the constitutionality of neutral, generally applicable laws that incidentally burdened religious practices applied the federal and state free exercise clauses interchangeably, without ascribing any independent meaning to the state clause. In view of this history, we may safely agree with the scholars who concluded in 1993, years after the high court decided Smith, that “section 4 has not so far played an independent role in free exercise claims.” (Grodin et al., The Cal. State Constitution: A Reference Guide (1993)

In a case that truly required us to do so, we should not hesitate to exercise our responsibility and final authority to declare the scope and proper interpretation of the California Constitution’s free exercise clause. Here, however, we need not do so because Catholic Charities’ challenge to the WCEA fails in any event. As we explain below, the statute passes strict scrutiny. A future case might lead us to choose the rule of Sherbert, the rule of Smith, or an as-yet unidentified rule that more precisely reflects the language and history of the California Constitution and our own understanding of its import. But “these important questions should await a case in which their resolution affects the outcome.”

We therefore review Catholic Charities’ challenge to the WCEA under the free exercise clause of the California Constitution in the same way we might have reviewed a similar challenge under the federal Constitution after Sherbert, and before Smith. In other words, we apply strict scrutiny. Under that standard, a law could not be applied in a manner that substantially burdened a religious belief or practice unless the state showed that the law represented the least restrictive means of achieving a compelling interest or, in other words, was narrowly tailored.

Applying this standard, we consider first whether the WCEA in fact burdens Catholic Charities’ religious beliefs. We do not doubt Catholic Charities’ assertion that to offer insurance coverage for prescription contraceptives to its employees would be religiously unacceptable. . . . Catholic Charities may, however, avoid this conflict with its religious beliefs simply by not offering coverage for prescription drugs. The WCEA applies only to employers who choose to offer insurance coverage for prescription drugs; it does not require any employer to offer such coverage

Anticipating this objection, Catholic Charities argues that its religious beliefs also require it to offer its employees insurance for prescription drugs. . . . In the present context — that of weighing an asserted burden on religious beliefs against the state interests supporting a challenged statute — the declaration raises the question whether Catholic Charities’ beliefs about the requirements of “justice and charity” are necessarily equivalent to religious beliefs. We must ask this question because a claim under the free exercise clause must be “rooted in religious belief” and not on “philosophical” choices or “a way of life, however virtuous and admirable.

The need to ask questions such as these places a court in an uncomfortable position. “Repeatedly and in many different contexts,” the high court has “warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.” The line between construing Catholic Charities’ declaration, which we must do, and determining the plausibility of religious claims, which we may not do, is fine indeed. Equally fine is the line between construing the declaration and determining whether the asserted burden falls on a protected religious belief or an unprotected philosophical choice, which we also must do. If we had to ask and answer these difficult questions, we would.

But we need not do so because Catholic Charities’ claim fails in any event: Assuming for the sake of argument the WCEA substantially burdens a religious belief or practice, the law nevertheless serves a compelling state interest and is narrowly tailored to achieve that interest. The WCEA serves the compelling state interest of eliminating gender discrimination. Strongly enhancing the state’s interest is the circumstance that any exemption from the WCEA sacrifices the affected women’s interest in receiving equitable treatment with respect to health benefits. We are unaware of any decision in which this court, or the United States Supreme Court, has exempted a religious objector from the operation of a neutral, generally applicable law despite the recognition that the requested exemption would detrimentally affect the rights of third parties.

Nor are any less restrictive (or more narrowly tailored) means readily available for achieving the state’s interest in eliminating gender discrimination. Any broader exemption increases the number of women affected by discrimination in the provision of health care benefits. Catholic Charities argues the Legislature could more widely exempt employers from the WCEA without increasing the number of affected women by mandating public funding of prescription contraceptives for the employees of exempted employers. . . . But Catholic Charities points to no authority requiring the state to subsidize private religious practices.

For these reasons, applying the strict scrutiny test of Sherbert to Catholic Charities’ claim against the WCEA under the free exercise clause of the state Constitution, we find the WCEA meets that test. We do not hold that the state free exercise clause requires courts to apply the Sherbert test to neutral, generally applicable laws that incidentally burden religious practice. Instead, as explained above, we leave that question for another day.

Dissenting Opinion by BROWN, J.

This case presents questions on which reasonable minds can differ — especially in light of the whimsical and somewhat erratic path of free exercise jurisprudence after the Supreme Court’s decision in Employment Div., Ore. Dept. of Human Res. v. Smith (1990). However, as a court pledged to defend constitutional limits, operating in the post-Smith environment, we ought to think very carefully about our role in defining the road ahead. Instead of being dismissive of the very serious claims presented here, we should treat them with the highest respect.

After Smith, neutral, generally applicable laws do not have to survive compelling state interest review. Such laws require no justification no matter how severely they burden the individual religious claimant and no matter how inconsequential the government interest. It is, however, far from self-evident, if or how, Smith applies to laws that directly contravene the religious conduct of religious organizations. The Women’s Contraceptive Equity Act (WCEA) attempts to circumvent this potentially substantial hurdle by creating a very narrow exemption for churches. But that begs an even more fundamental question: may the government determine what parts of bona fide religious organizations are religious and what parts are secular? And, in particular, may the government make such distinctions in order to infringe the religious freedom of that portion of the organization the government characterizes as secular? Because, unlike the majority, I do not think Smith provides obvious answers to these questions, I respectfully dissent.

Neither the propriety, nor the wisdom of, nor the government’s authority to impose a prescription contraceptive mandate on California employers is at issue here. The question is a very narrow one. May the government impose a mandate on a religiously affiliated employer that requires the employer to pay for contraceptives — in violation of an acknowledged religious tenet — or to redefine what constitutes religious conduct?1 While antidiscrimination laws reflect a constitutional value, religious liberty occupies a commensurate level in the constitutional hierarchy. As often happens with First Amendment cases, this is “a collision between two interests of the highest order: the Government’s interest in eradicating discrimination in employment and the constitutional right of a church to manage its own affairs free from governmental interference.” Thus, the desire to prevent discrimination cannot be the beginning and the end of the discussion.

Whether the WCEA would survive strict scrutiny — even under the relaxed federal standard — seems a much closer question than the majority acknowledges. But there may be other good reasons to rely on independent state grounds. Changes in the interpretation of the federal charter are not only becoming more frequent, the balancing test, and the standards applied to them, are shifting. Instead of applying Smith, we might view it as effectively returning free exercise questions to the states

A. A Document of Independent Force

We may take it for granted that the meaning of California Constitution article I, section 4, … is not dependent on the meaning of any provision of the federal Constitution. The state charter declares in so many words that ‘rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.’ “Respect for our Constitution as ‘a document of independent force’ forbids us to abandon settled applications of its terms every time changes are announced in the interpretation of the federal charter.”

This is true even when the language is identical to the federal Constitution, but is particularly true when the language differs. Accordingly, we have held that our free speech clause is ‘more definitive and inclusive than the First Amendment’. Similarly, although we have said California’s establishment clause is coextensive with the federal provision , California’s free exercise clause guarantees “free exercise and enjoyment of religion without discrimination or preference” and specifies that “liberty of conscience does not excuse acts that are licentious or inconsistent with the peace and safety of the state.” We do not have to decide that this language literally embodies the strict scrutiny test. The drafting history of California’s free exercise clause is not clear enough to resolve the question definitively.

The majority carefully avoids deciding whether strict scrutiny would be required under the California Constitution. Other states with very similar constitutional liberty of conscience clauses have found that infringement requires strict scrutiny. It may also be true that “section 4 has not played an independent role in free exercise claims” (Grodin et al., The Cal. State Constitution: A Reference Guide (1993) p. 44), but does that mean it should remain dormant?

Conclusion

Equality is one of those words, like justice, like freedom, which no one is against. But the invocation of the word “equality” often reduces analysis to empty platitudes. It is important to remember that in America we seek equality because it is a concomitant of freedom. When it is possible to accommodate both, that is what we should do.

 

Walker v. Superior Court (1988), 47 Cal.3d 112

MOSK, J.

We consider in this case whether a prosecution for involuntary manslaughter can be maintained against the mother of a child who died of meningitis after receiving treatment by prayer in lieu of medical attention. We conclude that the prosecution is permitted by statute as well as the free exercise and due process clauses of the state and federal Constitutions.

A. Free exercise under the First Amendment

In the absence of a statutory basis to bar defendant’s prosecution, we necessarily reach her constitutional claims. Defendant and the Church first contend that her conduct is absolutely protected from criminal liability by the First Amendment to the United States Constitution and article I, section 4, of the California Constitution. We do not agree.

The First Amendment bars government from “prohibiting the free exercise” of religion. Although the clause absolutely protects religious belief, religiously motivated conduct “remains subject to regulation for the protection of society.” To determine whether governmental regulation of religious conduct is violative of the First Amendment, the gravity of the state’s interest must be balanced against the severity of the religious imposition. If the regulation is justified in view of the balanced interests at stake, the free exercise clause requires that the policy additionally represent the least restrictive alternative available to adequately advance the state’s objectives.

Defendant does not dispute the gravity of the governmental interest involved in this case, as well she should not. Imposition of felony liability for endangering or killing an ill child by failing to provide medical care furthers an interest of unparalleled significance: the protection of the very lives of California’s children, upon whose “healthy, well-rounded growth … into full maturity as citizens” our “democratic society rests, for its continuance ….” Balanced against this interest is a religious infringement of significant dimensions. Defendant unquestionably relied on prayer treatment as an article of genuine faith, the restriction of which would seriously impinge on the practice of her religion. Regardless of the severity of the religious imposition, the governmental interest is plainly adequate to justify its restrictive effect.

The imposition of felony liability for failure to seek medical care for a seriously ill child is thus justified by a compelling state interest. To survive a First Amendment challenge, however, the policy must also represent the least restrictive alternative available to the state. The imposition of criminal liability is reserved for the actual loss or endangerment of a child’s life and thus is narrowly tailored to those instances when governmental intrusion is absolutely compelled.

We conclude that an adequately effective and less restrictive alternative is not available to further the state’s compelling interest in assuring the provision of medical care to gravely ill children whose parents refuse such treatment on religious grounds. Accordingly, the First Amendment and its California equivalent do not bar defendant’s criminal prosecution.

 

David A. Carrillo & Shane G. Smith, “California Constitutional Law: The Religion Clauses”

David A. Carrillo and Shane G. Smith, “California Constitutional Law: The Religion Clauses,” 45 U.S.F. L. Rev. 689 (2011)

Introduction

The unique religion provisions in the California Constitution provide compelling reasons to follow an independent state-law religion analysis, one that remains within the bounds set by federal law, harmonizes the various state and federal constitutional provisions, and best satisfies the competing legal and policy considerations. Read together, the California Constitution religion clauses permit the state government to confer on religion nothing more than generally available incidental benefits, doing only the minimum that is reasonably necessary to alleviate burdens on free exercise created by the government itself. Indeed, the California Constitution religion clauses require the state government to involve itself in the religions of the state’s populace to the least degree possible.

While early California historical evidence might support a permissive approach to religion in the state, current California religion doctrine rejects that view as failing to account for the impermissible intangible benefit to religion from the appearance of government preference for religious observance. The modern view of the state and Federal Establishment Clauses is that their broad principles protect all religions from governmental interference and discrimination, and the California Constitution is committed to the Jeffersonian principle of separation of church and state.1 California’s religion clauses, by providing greater protection of individual rights against establishment violations, are more protective of individual freedom of belief because the state constitution requires greater government neutrality and has broader restrictions on actual or apparent preference.2 This reduces the state’s ability to prefer one religion under the guise of accommodation, while retaining the state’s ability to alleviate a burden on all affected religions equally.

This Article argues that, to the extent there is a lack of clarity regarding the degree of neutrality required by the Supreme Court, California’s distinct constitutional provisions compel a standard that follows the most strictly neutral line permissible under federal law. The standard proposed here is derived directly from the language of the California Constitution and decisions of the California Supreme Court. Consequently, rather than arguing for a change in the law, this Article proposes a view of the religion authorities that clarifies and harmonizes existing law.

II. The California Incidental-Benefits Standard

A. Overview

Religion cases presented under the California Constitution, in contrast to those brought solely under the federal charter, rarely turn exclusively on an application of Lemon. Indeed, it would be surprising to see such a case given the variety of constitutional claims available in California. True, the establishment provision in article I, section 4 of the California Constitution (added by the electors as an initiative amendment in the November 5, 1974 general election) is nearly identical to the Federal Establishment Clause and thus standing alone, provides no basis for an independent state law analysis.86 But the terms of the California Free Exercise Clause in article I, section 4 (known as the “no preference” clause) are distinct, and the California Constitution contains two other provisions (no sectarian education in article IX, section 8 and no sectarian aid in article XVI, section 5) that have no analogues anywhere in the Federal Constitution.

The distinct terms of these unique provisions in the state constitution have been viewed by at least a plurality of the California Supreme Court as providing additional, stricter state-law guarantees that religion and state government must remain separate.87 Together, the California religion clauses form part of a contiguous whole, and this comprehensive scheme governing separation of church and state means that religion claims brought under the California Constitution necessarily require analysis of all the California religion clauses through a unified state-law-specific analysis, rather than merely applying Lemon. Though each constitutional provision could be viewed in isolation as requiring a subtly different posture with respect to religion, state government can only act with one hand. Consequently, all of the religion clauses must be read together under a single unified analytical framework–one that accounts for binding federal law but which also maintains faith with and gives due credit to the independently effective California constitutional provisions.

The California Religion Clauses Merit an Independent State Interpretation

California courts construe provisions of the state constitution in light of the unique language, purpose, and history of the state’s charter. Whether analyzed from a structural or interpretive perspective, the complementary religion provisions in the state constitution substantially differ from those in the Federal Constitution. Consequently, other than respecting the boundaries marked by federal religion jurisprudence, there is little reason to permit federal law to govern the whole analysis of these distinct and independent state constitutional provisions. This is so even when the state constitution contains the same language as a federal constitutional provision; because the California Constitution is the supreme law of the state, a document of independent force that establishes the state’s governmental powers and safeguards the individual rights and liberties of its citizens.88 The state high court is the final arbiter of the meaning of the state constitution’s provisions.89 Its power to interpret the state charter is a nondelegable aspect of the basic structure of California government.90 Consequently, California courts are not bound by Supreme Court decisions regarding analogous state constitutional provisions. However, decisions of the Supreme Court, while not binding on state constitutional law issues, are entitled to great deference, and ordinarily the state supreme court will not depart from a construction placed by the Supreme Court on a similar provision in the Federal Constitution absent cogent reasons.91 As discussed below, strong reasons for an independent state analysis exist in abundance for the religion clauses.

In addition to textual differences and the wealth of California-specific history supplying meaning to the unique state provisions, the current interpretations of the religion clauses in the Federal Constitution are not as comprehensive as the California provisions.92 That is all the more reason for a state-law analysis specifically tied to the state charter. All of the California-specific provisions must be accounted for in the state’s religion analysis.93 That notion holds true even if approached from an ordinary interpretive perspective, as the California Constitution is subject to the same interpretation rules as a statute, which mandate that each provision must be given independent weight and all provisions must be read together.94 Accordingly, all of the California Constitution’s religion provisions must be read together and harmonized, the better to give effect to the intent of the drafters. True, in East Bay Asian Local Development Corp. v. State, the California Supreme Court decided that federal law applies to establishment claims under the state constitution.95 But that decision concerns only one of the several religion clauses in the California Constitution, and collectively these unique state constitutional provisions provide the kind of cogent basis that warrants distinguishing the state religion analysis from the federal approach.96

C. History of the California Constitution Religion Provisions

1. Article I, Section 4: “Without Discrimination or Preference”

The text of the “no preference” clause (“NPC”) in article I, section 4 of the California Constitution seems straightforward. It provides: “Free exercise and enjoyment of religion without discrimination or preference are guaranteed.”97 By its plain language, this provision seems to require a stricter separation between church and state than that required by the Federal Constitution. Yet a majority of the California Supreme Court has explained neither the scope of this guarantee nor the applicable level of constitutional scrutiny.

This Article endeavors to interpret the NPC in a manner consistent with its usage throughout California’s constitutional history and decisions of the state supreme court. From this analysis emerges the view that the NPC requires equal treatment of religious beliefs and nonbeliefs by state government. As with the federal religion clauses, there is some historical support for the position that the mere impression of preferential treatment is not always, by itself, impermissible. But as discussed below, California’s constitutional statement on religion is more comprehensive than any one provision standing alone. When considered together, even the possible original intent of the drafters of the NPC must give way to a unified view of the constitution based on the subsequent substantive changes to the state charter’s religion provisions.

a. The History of the NPC Shows [an early] Permissiveness for Preferences

The origins of the clause in the New York Constitution and its evolution in California show that the 1849 drafters did not intend for the NPC to entirely preclude statutes or state actions giving the mere impression of preferential treatment toward a given religious belief. The phrase in article I, section 4 of the California Constitution guaranteeing “free exercise and enjoyment of religion without discrimination or preference” is clear with regard to the kind of state action prohibited.98 Inherent in the meaning of “free exercise and enjoyment of religion” is the notion that an individual may adhere to any of a number of religious faiths or practice no religious belief at all.99 In preserving the ability of all citizens to fulfill their individual beliefs, the plain text of the phrase withholds from state government the power to promote or advance any particular belief system to the detriment of others. Thus, on its face, the NPC requires equal treatment of religious beliefs by state government and precludes a state-established religion.

But the text of the NPC is ambiguous as to the degree of limitation, in other words, the extent to which government must remain neutral. Although an anti-establishment principle is clear from the text, the clause is phrased as a guarantee of a personal right. Resolving the ambiguity begins with the ordinary rules of constitutional interpretation. The principles of constitutional interpretation are similar to those governing statutory construction. In interpreting a constitution’s provision, our paramount task is to ascertain the intent of those who enacted it. To determine that intent, we “look first to the language of the constitutional text, giving the words their ordinary meaning.” If the language is clear, there is no need for construction. If the language is ambiguous, however, we consider extrinsic evidence of the enacting body’s intent.100

Accordingly, we turn to the history of the NPC.101 Article I, section 4 originated in the California Constitution of 1849, a document produced during tumultuous times by convention delegates who sought to establish a government that would, among other pursuits, “secure the blessings of civil, religious, and political liberty.”102 Delegates Moore and Dimmick, for example, acknowledged that the convention participants arrived with instructions from their constituents “to lay down the broad and general principles of religious freedom,”103 a sentiment echoed by all in attendance at the close of the convention.104 The Treaty of Guadalupe-Hidalgo had already promised that Mexican citizens living in American California would be “secured in the free exercise of their religion without restriction.”105 Yet to the delegates — living in an era when state and local governments operated beyond the reach of the Federal Bill of Rights — the California Constitution presented the principal safeguard against state encroachment on individual freedoms.106

Based on the treatment of religion in the 1849 debates, the presence of overtly Christian references during the convention, and the conditioning of the right of religious liberty in conformity with prevailing religious norms, it is difficult to avoid concluding that the drafters of the 1849 California Constitution meant anything other than a right to Christian religious liberty.141 As a result, the 1849 drafters may well have tolerated state action aligned with California’s dominant Christian religion and may have condoned a law or state action that gave the appearance of a preference for mainstream religious beliefs.

In contrast, the debates on the next California Constitution demonstrate the beginning of a trend toward greater protection of individual religious liberty. Only thirty years after the original convention, in 1878, delegates assembled in convention in Sacramento to write a new constitution for a state coping with powerful corporate monopolies, soaring population, financial panic, drought, and significantly misguided racial resentment.142 The NPC came up for debate twice. Although several amendments were proposed, only one was adopted that fortified the separation between church and state by guaranteeing religious free exercise without discrimination or preference.

The 1878 convention otherwise left article I, section 4 unaltered.149 These actions by the 1878 delegates concerning the NPC are consistent with the view that restrictions on state entanglements with religion were primarily intended to advance personal religious freedom, as reflected in contemporaneous California Supreme Court decisions.150

Finally, the NPC was amended again in 1974 when the electorate adopted a streamlined version of article I, section 4 through an initiative constitutional amendment.151 The ballot argument in favor of Proposition 7 provided that the initiative was intended to “modernize and shorten California’s Constitution.”152 Accordingly, the 1974 amendment to the NPC was merely a nonsubstantive rephrasing into contemporary language.153

b. The NPC Requires Even Treatment of Religious Beliefs

Based on this historical review, and considered alone, it is possible to conclude that the NPC would permit the appearance of preferential treatment short of an Establishment Clause violation. But the text of the NPC is phrased as a guarantee of a personal right, and the overall history of the clause is at least not inconsistent with a focus on preserving individual religious liberty. Thus, standing alone the NPC is ambiguous as to the degree to which government must remain unaffiliated with any particular religious view, given the apparent conflict between the history of the clause and its plain meaning. As discussed below, the better view is that, particularly considered together with the other California religion clauses, the NPC requires even treatment of religious beliefs (or nonbeliefs) by state government, even in appearances.

In the broadest sense, the NPC requires state neutrality towards the free exercise rights of its citizens.154

Under this provision, the state supreme court held that the illumination of a cross on the Los Angeles City Hall building showed an impermissible preference to Christianity, as preference “is forbidden even when there is no discrimination.”155 And a plurality of the state supreme court found that government sponsorship of religious invocations at public school ceremonies “appears to take positions on religious questions” in violation of the NPC.156 At a minimum, under federal law it can present no absolute bar to governmental accommodation of religion, and so the NPC has been held to permit the exemption of religious organizations from landmark preservation laws.157 As of this writing, however, the California Constitution’s NPC awaits a binding interpretation by the California Supreme Court, as a majority of the state high court has yet to definitively construe its reach.158 It is clear, however, that the question remains open.159

The opinions of the justices of the California Supreme Court considering the NPC present divergent views on its meaning. In one view, the clause presents an unyielding pillar of governmental neutrality towards all religious beliefs. In the other, the clause permits an appearance of preference that falls short of an official establishment of religion. The difference between these views is vast, and the decisions applying them are often inconsistent.

One position, best exemplified by Justice Mosk’s concurrence in Sands, concludes that the Framers of the California Constitution intended to erect “a Jeffersonian wall of separation between church and state in California.”160 Under this view, the clause requires a policy of strict governmental neutrality toward religion by “seeking to prevent government from giving any advantage to religion.”161 Courts hearing a “no preference” challenge must determine “whether government has granted a benefit to a religion or religion in general that is not granted to society at large.”162 And with the exception of cases where a religious group has been denied access to a limited public forum, Justice Mosk’s view would impose an absolute bar without regard to any compelling government interest: “Once government bestows that differential benefit on religion, it has acted unconstitutionally in this state.”163

The other approach views the NPC as a permissive standard that supplements the existing prohibition against state establishment in the First Amendment and its “make no law” counterpart in article I, section 4. As stated by Justice Panelli in his Sands dissent, “the clause appears to add only the requirement that the state not prefer, or discriminate against, a particular sect.”

Justice Mosk’s strict neutrality viewpoint has some support. Chief Justice Bird, concurring in Fox, reasoned that even a trivial showing of a Christian preference by a city’s display of a cross was constitutionally impermissible.168 California Attorney General Edmund G. Brown once observed that “it would be difficult to imagine a more sweeping statement of the principle of governmental impartiality in the field of religion” than that found in the NPC.169 Due in part to this conclusion, he opined that voluntary Bible readings in public classrooms for sectarian purposes constituted an unconstitutional display of preference to Christianity.170

Lastly, in the absence of a conclusive California Supreme Court decision, federal courts in the Ninth Circuit have essentially adopted Justice Mosk’s bright line approach by finding that “‘California courts have interpreted the no preference clause to require that not only may a governmental body not prefer one religion to another, it also may not appear to be acting preferentially.”’171

Given the evidence of the drafters’ intent, neither of the approaches taken by Justice Mosk or Justice Panelli seems entirely correct. However, Justice Mosk’s view — that the NPC mandates strict state neutrality toward all religious beliefs, with government precluded from giving “any advantage” to a particular sect — has significant advantages.172 It provides certainty for government and potential litigants and, if achievable in practice, would lower the probability that any of the state’s countless activities would tend toward religious entanglement.173 And the Justice Mosk view has gained some acceptance among federal courts.174 Justice Panelli’s view on the other end of the accommodation spectrum relies on the openly Christian tone of the constitutional conventions to argue that the drafters condoned incidental religious expression in government activities.175 But this proves too much–while that may have been true given the social customs of the nineteenth century, that observation does not dictate the same conclusion today, particularly given the subsequent amendments to the state charter by voters in 1974. Instead, the drafters’ alignment with California’s traditionally dominant religions at best supports a middle position of intent to permit some minimal appearance of religious preference despite the guarantee of religious liberty.

D. Synthesis of the California Constitution Religion Provisions

1. Introduction

The various provisions in California’s Constitution relating to church-state relations must be read together to create a comprehensive regulatory scheme: free exercise and enjoyment of religion without discrimination or preference are guaranteed; no law respecting an establishment of religion can be enacted; no aid can be given to sectarian education; the University of California is required to be free from sectarian influence; the legislature may exempt real property used exclusively for religious worship from property taxation; and no aid may be given to religion (except for orphanages).207 The usual principles of constitutional construction require them to be harmonized.208 The general rule of construction in the state constitution itself provides that its provisions are mandatory and prohibitory, unless expressly declared to be otherwise.209 Nothing about the text of the religion clauses indicates that they were intended to be optional. Finally, the Religion Clauses must be interpreted in the context of the guarantee in the California Constitution that “[r]ights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.”210 As a result, these state constitutional provisions require the California government to ensure that citizens of different religious beliefs can live together in mutual tolerance and respect by maintaining strict neutrality in religious matters, accommodating religion only as reasonably necessary, and otherwise permitting only generally available incidental benefits to accrue to religion.

California courts have declined opportunities to synthesize the religion clauses in the state constitution. The current California rule is that the identity of the language in the California and Federal Establishment Clauses requires state action reached by either provision to be decided under the Supreme Court’s Lemon standard.211 Cogent and persuasive reasons exist for departing from high court authority where interpretation of the religion clauses of the state constitution as a whole is concerned. Decisions of the Supreme Court, while not binding on questions of California constitutional law, ordinarily will not be departed from in the absence of cogent and persuasive reasons.212 Such a reason exists when “clear differences in the language and history of [state and federal] constitutional provisions may show that they are not truly parallel.”213

The unique religion provisions in the text of the California Constitution, the history of their amendments, the expressed intent of the drafters, and past judicial interpretations, all demarcate the clear differences in state and federal law providing cogent and persuasive reasons to develop a distinct state religion analysis. Because the California Constitution contains significant textual differences that impose greater restrictions on state aid to religion, the California Constitution requires a stricter separation between church and state within the outer bounds set by federal law.214

Under the California religion clauses, there is less room for religious influence in government and public contexts, as it is impossible to honor one religious view without neglecting all the others. Thus, even if the two Establishment Clauses are equivalent, because the California Free Exercise Clause requires stricter observance of neutrality, the balance of establishment and free exercise necessarily changes in the state analysis. This means at the very least that California’s incidental benefits rule and NPC require a restrictive application of the accommodation principle. Accordingly, when the proper case presents the issue, the California Supreme Court should take the opportunity to reconcile all of the California constitutional provisions on religion with a unified analysis such as that proposed here.

The California Religion Clauses are more restrictive than their federal counterparts given the no preference language and the additional prohibitions against public aid to religious institutions in article IX, section 8 and article XVI, section 5. Thus, it must be the case that the California Constitution permits even less entanglement and even less state aid to religion than does the Federal Constitution. True, after the decision in East Bay Asian, a California Establishment Clause question considered in isolation would be subject to the Lemon analysis. But in California it is rare for a California religion case to involve only the Establishment Clause. That is because, while federal religion cases arise in the union of the Establishment and Free Exercise Clauses, in California an even more complex conflict of constitutional values occurs, as such cases arise in the union between the establishment, no preference, no aid, and sectarian education clauses.

The history of the California religion clauses reveals that, whatever the original meaning of the NPC may have been, its historical evolution requires at least even treatment of religious beliefs (or nonbeliefs) by state government, particularly through avoidance of any official establishment of, preference for, or discrimination against religion. The current text is phrased as a guarantee of a personal right, indicating that a balance between free exercise and anti-establishment elements is inherent in the operation of the clause. The focus of the 1849, 1878, and 1974 drafters on preserving individual religious liberty throughout the clause’s history shows that free exercise rights are paramount; if anything, the most rational view of the evolution of article I, section 4 in particular is that its protection of individual religious liberty increased over time.

Indeed, the California Supreme Court has suggested that the no preference provision is more comprehensive than the religion clauses of the First Amendment.251 Moreover, both the free exercise and establishment components were expressly strengthened after the 1849 convention, first with the expansion of the NPC’s free exercise guarantee in 1879 and the introduction of article XVI, section 5 and article IX, section 8, and next with the addition of the Establishment Clause in 1974. These changes and additions had the cumulative effect of substantially limiting the zone wherein state action could assume the appearance of preferential treatment, requiring an analysis that focuses on the strictest, least common denominator element: the incidental-benefits analysis under article XVI, section 5.

This incidental-benefits standard is consistent with the NPC. At the time of the 1849 convention, the first ten Amendments to the Federal Constitution applied only to the federal government.252 Consequently, when the 1849 delegates wrote only the NPC into article I, section 4 and omitted a specific Establishment Clause, two conclusions are possible. It is conceivable that the delegates may not have intended to prevent the state from establishing a religion, but the obvious implications of the NPC and the comments of the delegates make this scenario highly unlikely. It is far more likely that the NPC was intended to prevent the government from discriminating against any religion by establishing one. Thus, the 1974 Establishment Clause ballot pamphlet argument that described the addition as codifying existing law was literally true–the California Constitution already contained the establishment concept and adding the clause simply codified the preexisting principle. If there was any doubt about this, the fact that article XVI, section 5 had been in the state constitution since 1879 should have been conclusive.

Another reason to view the NPC as including an establishment component is the disjunctive dual-rights phrasing of the text itself. Because the NPC is both mandatory and prohibitory, “by its express terms, what [article I, section 4] mandates is the perpetual guaranty of the free exercise and enjoyment of religion; what it prohibits is discrimination against, or preference in favor of, one religion as opposed to another.”253 As Attorney General, Governor Edmund G. Brown described the scope of the NPC in the broadest terms: “it would be difficult to imagine a more sweeping statement of the principle of governmental impartiality in the field of religion.”254 Accordingly, the California Supreme Court has interpreted the NPC as being more protective of the principle of separation of church and state than the Federal Constitution. Governmental action is allowed as long as “it neither favors, fosters, nor establishes any religion . . . [nor which] in any way, directly or indirectly, infringe[s] upon the free exercise rights of the people of this state.”255

Whether viewed from a purely textualist perspective or from the viewpoint of a living constitution, the current construction of the NPC should be one that prevents even the appearance of preference. This would present a significant distinction from the more permissive federal standard.256 A plain-text reading of the NPC shows that it bars either kind of government interference with individual belief: discrimination against, and preference for, any one religion. This is consistent with the text and current interpretation of the other broadly worded bans in the California Constitution on public support for religion, and in particular it is consistent with the incidental-benefits standard. That nondiscrimination principle was the rationale for the decision in Mandel v. Hodges, in which the court held that the governor’s order granting state employees three paid hours of leave for Good Friday violated the California NPC by creating the appearance of a preference for one religion that necessarily discriminated against others: “Because it has appointed an exclusively Christian holy day as a paid ‘holiday’ for all pertinent purposes affecting state offices and employees, it amounts to ‘discrimination’ against all non-Christian religions and ‘preference’ of those which are Christian.”257 Accordingly, by barring even the appearance of a benefit, the incidental-benefits standard required by article XVI, section 5 satisfies the requirement of the NPC that an appearance of preference be avoided.

The California Constitution, with its substantively different religion clauses, requires a finer analysis than does federal law, one that imposes both greater restriction on the government and greater protection for individual belief.262 In California, the incidental benefits standard prevents more than incidental benefits from accruing to religious organizations, except that the government may do only what is reasonably necessary to accommodate a burdened free exercise right. In other words, the California Constitution limits government discretion in accommodating free exercise rights to only the minimum required to satisfy federal free exercise concerns.263 This stricter California incidental-benefits standard follows the requirements of the stricter state constitutional provisions, while complying with Supreme Court religion doctrine.

The early trend in California decisions applying the California Free Exercise and Establishment Clauses was to apply the California clauses consistently with their federal analogues, and consequently the standard was comparatively permissive. The modern trend in state and federal religion cases is more restrictive– properly so, given the current reading of the state and federal constitutions as protecting all religions (not merely the Christian variants). While courts from both periods likely would agree that it is appropriate for a public school to purchase a King James Bible for a public school library, certainly a modern court would bar such schools from using that work as a classroom text.274 Similarly, while the traditional reading of the Free Exercise and Establishment Clauses as not requiring governmental antipathy to religious observance remains true today, the necessary result of the neutrality required in public contexts is that no religion should be allowed observance. While there may be debate on that matter in the Supreme Court under federal law, it surely is the correct view under the more restrictive language of the California religion clauses.

For example, a public religious display case such as Lynch should be resolved differently under California law. An official holiday celebration is a problematic neutrality issue under federal law because public promotion of the religious aspect of one religion’s holiday means that citizens with other beliefs are excluded by their own government, and the holiday’s believers have the satisfaction of official endorsement that their holy day is indeed noteworthy because the polity has identified itself with their religious celebration. While it is true that some Christian holy days have become secular holidays, others such as Good Friday have not.275 Christmas particularly presents this issue, as it is a holiday with secular aspects that grew out of a religious observance and currently contains elements of both. Some aspects of observing the Christmas holiday can cross the Rubicon into a holy day observance, such as placing a crèche or cross on public lands. Yet there is a clear distinction between secular and religious symbols, even for a holiday of mixed origin: “Easter crosses differ from Easter bunnies, just as Christmas crosses differ from Christmas trees and Santa Claus.”276 Under the federal standard, this is not an Establishment Clause violation because, at most, it presents an appearance risk.277

The California NPC, however, bars a religious symbol on a public building during Christmas, as that is not mere “participation in the secular aspects” of the holiday season.278 Under California’s NPC and article XVI, section 5, even the appearance of a religious preference makes the practice unconstitutional.279 This result flows from both the California incidental-benefits analysis and the federal establishment neutrality principle, as “governments must commit themselves to ‘a position of neutrality’ whenever ‘the relationship between man and religion’ is affected. To be neutral surely means to honor the beliefs of the silent as well as the vocal minorities.”280

While the principles of Lemon necessarily will have some application on California religion cases, it is by no means dispositive. It is true that the California Supreme Court has applied Lemon in cases that primarily involved federal constitutional claims.290 But the state high court has never held that Lemon completely governs the state-law religion analysis. On the contrary, the decision in Catholic Charities v. Superior Court strongly suggests that another test may apply in cases that involve more than one religion provision of the state constitution.291 Consequently, the applications of Lemon to federal establishment claims by California courts should not detract from the availability of a California-specific religion analysis.

Even if the [United States] Supreme Court no longer concerns itself with it, under the California religion clauses the potential for divisiveness caused by state action should remain a factor. Under the no preference and no aid clauses, impermissible governmental support is present when the weight of secular authority is behind the dissemination of religious tenets.292 Members of other religions may be unable to secure the same public benefit because of insufficient numbers, money, or influence. Thus, the free-exercise rights of the other religions would be infringed by the inability to participate, as would the free-exercise rights of nonbelievers be affected by the pressure upon them to conform to the beliefs of the recognized religion. Either scenario creates unnecessary competition between sects and encourages divisiveness over religious beliefs.293 Such problems are best avoided with a state-law analysis that minimizes government involvement in religion.

The accommodation justification only applies in the union of the Free Exercise and Establishment Clauses under federal law, and under California law for accommodation to apply the case must arise in the union of the no preference, establishment, and no aid clauses.312 The greater the accommodation, the greater must be the justifying burden lest the practice violate the incidental-benefits rule. Conversely, accommodation may be required where a government-imposed burden needs lifting, but it only applies where there is a free exercise right in the first instance to engage in the conduct claimed to be burdened.313 If there is no constitutional right to engage in public prayer vigils in a government building, for example, then there is no basis for arguing that government must lift a barrier to permit the exercise. But even accommodation alone may not be a sufficient justification for a benefit that aids religion, even if it aids all religions equally, because the government must be neutral between the religious and secular as well as among religions.314

As a result, while “alleviation of significant governmentally created burdens on religious exercise is a permissible legislative purpose that does not offend the Establishment Clause,”315 that does nothing to resolve the no preference and no aid issues presented by an accommodation. This then leads to the discussion in Catholic Charities regarding the three possible tests that the state Supreme Court potentially could apply to the article I, section 4 NPC: “A future case might lead us to choose the rule of Sherbert, the rule of Smith, or an as-yet unidentified rule that more precisely reflects the language and history of the California Constitution and our own understanding of its import.”

C. The Three Paths Left Open by Catholic Charities

The decision in Catholic Charities left open the possibility that the California Supreme Court might adopt either Sherbert, Smith, or a California-specific analysis. Because neither Sherbert nor Smith adequately accounts for the distinct terms and history of the California Constitution religion clauses, adopting a state-specific analysis is the best course.

In California, where the NPC expressly codifies the principle that to prefer one religion is to discriminate against others. Viewed from that perspective, preventing government participation in a particular public exercise of religion to the greatest permissible degree is a protection of individual freedom of religious belief. This explains why school-sponsored Bible study groups (certainly an expression of individual belief) must be barred.

The Free Exercise Clause of the federal Constitution embodies two rights: Freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Under the Free Exercise Clause, freedom of conscience and freedom to adhere to such religious organizations or beliefs as the individual may choose is secured against governmental interference. This is not to say, however, that religion may be exercised wherever and whenever the adherent chooses. The inevitable consequence of the Establishment Clause when applied to religious ritual on school property is to restrict that activity to preserve the wall between church and state.334

Thus, in the religion context, California courts are equally concerned with appearances and inferences, with the indirect and small, as with the direct, intentional, and substantial.335 Even seemingly trivial aid that gives only the appearance of preference still provides the same mental satisfaction to the supported–and the same dispiriting rejection to the excluded–as does the explicit endorsement. Accordingly, only the incidental-benefits analysis accounts for and harmonizes all of the applicable federal and state constitutional provisions and principles.

Conclusion

Federal law provides the boundaries within which California may operate when regulating the interaction of government and religion. Within those limits, an independent state-law analysis is permitted. Indeed, strong reasons exist for a California religion analysis to account for the distinct terms and history of the state constitution religion provisions. As discussed above, considered in isolation, either the history or text of the individual California religion provisions might support government action that gives the appearance of preferring one or all religions. Considered together, the text and history of all the religion provisions in the California Constitution require application of the incidental-benefits standard, which bars even the appearance of a preference. To remain consistent with the federal constitutional requirements, and to maintain internal consistency, there remain state-law requirements for alleviating any government-imposed burdens on religious observance–but without the more liberal federal standard that government may do more than is strictly necessary to remove the burden. In the end, this stricter California standard is more protective of religious freedoms, as “faith flourishes more freely in a sanctuary protected from the dictates of the majority.”366

In a country that currently retains a majority ethnicity and a majority religion, it is seductive to think that the preferences of the majority should have some weight in California religion cases. Indeed, to allow the offended sensibilities of minority religions to dictate the nature and extent of public devotional opportunities for the largest segment of the community may seem counterintuitive, or at least unfair.372 But neutrality is necessary to maintain a truly pluralistic society, and if government must be neutral in matters of religion, then neutrality surely requires honoring the beliefs of the quiet as well as the vocal minorities.373 Like the other individual rights contained in the state and federal constitutions, these rights also exist to protect the individual against the community or the government.374 The essence of any individual right necessarily is counter-majoritarian — otherwise it would either be only a collective right, or no right at all. Religion, like privacy and equal protection, is not a principle that can be defined by collective action or majority vote; barring a federal constitutional amendment, the nature of the establishment and free-exercise principles is a legal matter, not a democratic one. Indeed, it risks a basic tenet of the republican bargain for a temporary majority to establish discriminatory religious principles, as today’s majority may well be tomorrow’s minority.375 In the same way, a rule allowing the religion of the day to receive special benefits only raises the specter of future discrimination: “‘Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?”’376

Religion in the state polity is not an unqualified good — like anything else in public life, it can be a positive or negative factor. Consequently, it is not necessarily beneficial to society for the state government to take a so-called “benevolent” attitude towards religion. In the best case, such benevolence has a high risk of preference and excess entanglement. In the worst case, it is a euphemism for preferential treatment and discrimination. Preserving government neutrality in religion is a difficult and thankless task, but it unquestionably belongs to the judiciary.

This does not mean that the judiciary must be sectarian hall monitors–on the contrary, the California Supreme Court rightly has rejected attempts to make it into a “standing committee on approved theology,” as that is a task for which the courts are, “to say the least, not well equipped.”378 But the courts will continue to be presented with these difficult questions. If the gestalt of the religion provisions in the California Constitution is to keep government out of sectarian divisions to the greatest possible extent, then the California courts would be well served by a unified religion analysis such as the one proposed here for maintaining the delicate balance between secular government and religious observance.

 

Establishment of religion

Cal. Constitution Art. I sec. 4; Art. IX sec.8; Art. XVI sec. 5

CALIFORNIA CONSTITUTION

ARTICLE I DECLARATION OF RIGHTS

SEC. 4. Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State. The Legislature shall make no law respecting an establishment of religion. A person is not incompetent to be a witness or juror because of his or her opinions on religious beliefs.

ARTICLE 9 EDUCATION

SEC. 8. No public money shall ever be appropriated for the support of any sectarian or denominational school, or any school not under the exclusive control of the officers of the public schools; nor shall any sectarian or denominational doctrine be taught, or instruction thereon be permitted, directly or indirectly, in any of the common schools of this State

ARTICLE 16 PUBLIC FINANCE

SEC. 5. Neither the Legislature, nor any county, city and county, township, school district, or other municipal corporation, shall ever make an appropriation, or pay from any public fund whatever, or grant anything to or in aid of any religious sect, church, creed, or sectarian purpose, or help to support or sustain any school, college, university, hospital, or other institution controlled by any religious creed, church, or sectarian denomination whatever; nor shall any grant or donation of personal property or real estate ever be made by the State, or any city, city and county, town, or other municipal corporation for any religious creed, church, or sectarian purpose whatever; provided, that nothing in this section shall prevent the Legislature granting aid pursuant to Section 3 of Article XVI.

 

Federal Establishment Clause: Lemon v. Kurtzman, 403 U.S. 602 (1971)

Mr. Chief Justice BURGER delivered the opinion of the Court.

These two appeals raise questions as to Pennsylvania and Rhode Island statutes providing state aid to church-related elementary and secondary schools. Both statutes are challenged as violative of the Establishment and Free Exercise Clauses of the First Amendment and the Due Process Clause of the Fourteenth Amendment

Pennsylvania has adopted a statutory program that provides financial support to nonpublic elementary and secondary schools by way of reimbursement for the cost of teachers’ salaries, textbooks, and instructional materials in specified secular subjects. Rhode Island has adopted a statute under which the State pays directly to teachers in nonpublic elementary schools a supplement of 15% of their annual salary. Under each statute state aid has been given to church-related educational institutions. We hold that both statutes are unconstitutional.

Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.

A broader base of entanglement of yet a different character is presented by the divisive political potential of these state programs. In a community where such a large number of pupils are served by church-related schools, it can be assumed that state assistance will entail considerable political activity. Partisans of parochial schools, understandably concerned with rising costs and sincerely dedicated to both the religious and secular educational missions of their schools, will inevitably champion this cause and promote political action to achieve their goals. Those who oppose state aid, whether for constitutional, religious, or fiscal reasons, will inevitably respond and employ all of the usual political campaign techniques to prevail. Candidates will be forced to declare and voters to choose. It would be unrealistic to ignore the fact that many people confronted with issues of this kind will find their votes aligned with their faith. Ordinarily political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. The history of many countries attests to the hazards of religion’s intruding into the political arena or of political power intruding into the legitimate and free exercise of religious belief.

 

Federal and state interpretations in conflict

Johnson v. Huntington Beach Union High School Dist. (1977), 68 Cal.App.3d 1137

TAMURA, J.

Plaintiffs (high school students) sought judicial relief from a refusal of the Huntington Beach Union High School District (district) to permit a voluntary student Bible study club to meet and conduct its activities on the school campus during the school day. The trial court sustained the district’s action and denied plaintiffs the relief sought. The precise question we must decide is whether school officials of a tax-supported high school of the district may permit plaintiffs’ Bible study club to meet and conduct its activities on the school campus during the school day under regulations governing student clubs. The administrative action which plaintiffs seek would constitute state action and as such must withstand constitutional scrutiny under the guidelines enunciated in Lemon v. Kurtzma

For many years the district has permitted and still permits high schools under its jurisdiction to grant recognition to student clubs and to permit such clubs to use classrooms and other space for club meetings and to publicize their activities through the school newspaper and school bulletin boards. The district did not, however, permit student religious clubs to meet on the school campus during the school day. Over 100 Edison High School students responded to the district’s action with a written application seeking formal recognition of a club whose express purpose was “to enable those participating to know God better … by prayerfully studying the Bible” and whose membership would be open only to those who “have a genuine interest in the fulfilling of the purpose of this organization.”5 School officials at Edison High rejected the petition and the district’s board of trustees did likewise.

No test can be applied with precision in determining where the line between church and state should be drawn; the problem, like many in constitutional adjudication, is one of degree. The high court has cautioned that the tripartite Lemon test is to be viewed, not as a formula prescribing the precise scope of constitutional inquiry, but as a touchstone with which to identify instances where the objectives of the establishment clause have been compromised.

It is apparent that if the club is permitted to meet and conduct its activities on the school campus as a student club as demanded by plaintiffs, state financial support would flow directly to the club. It would be entitled to use classroom space rent free, receive heat and light and would be monitored by a paid faculty sponsor. The district would also be obligated at its expense to audit club finances.

We do not rest our decision, however, on financial aid alone.10 The “primary effect” test bespeaks not only of financial assistance but also necessarily inquires whether the consequence of state action is to place its imprimatur upon the religious activity. This aspect of the effect test reaches the essence of the establishment clause proscription. It is in the foregoing respect that permitting plaintiffs’ Bible study club to meet and operate on the school campus during the school day most offends establishment principles. Under the district’s rules and regulations, the club will become an entity “sponsored by the school” and as such will be entitled to use the school name in connection with its activities, to free use of school premises and property, to access to the school newspaper and school posting facilities to advertise its activities, and to solicit contributions on campus during the school day.

The state action which plaintiffs seek would also run afoul of the third prong of the Lemon test. The school would be required to supply a “faculty sponsor” who would be required to attend all club functions and approve all club activities.12 The school would also be required to audit the club’s financial accounts13 and review membership procedures to ensure they are neither secret nor discriminatory.14 Thus, permitting the Bible study club to operate on campus would foster excessive state entanglement with religion.

To this point we have concerned ourselves only with the federal establishment clause. However, section 4 of article I of the California Constitution contains an establishment clause identical to that of the First Amendment to the federal Constitution.15 For all of the reasons heretofore stated, we hold that the state action in question is proscribed by the establishment clause of the state Constitution.

Furthermore, section 5 of article XVI of the California Constitution also compels us to uphold the school district’s action. The section provides in relevant part: “Neither the Legislature nor any … school district … shall ever make an appropriation, or pay from any public fund whatever, or grant anything to or in aid of any religious sect, church, creed, or sectarian purpose. …”16 As we have explained, permitting the club to operate on campus implicates school authority and prestige behind the dissemination of religious dogma. This benefit cannot be viewed as “incidental to a primary public purpose.”

The inevitable consequence of the establishment clause when applied to religious ritual on school property17 is to restrict that activity to preserve the wall between church and state.

This is not a case where plaintiffs are denied access to all public forums for religious expression; they are merely being denied use of school property during the school day for religious purposes. This deprivation in no way infringes upon their religious rights when practiced outside the confines of the school. Plaintiffs are only being denied religious expression in a manner involving state participation. Each club member remains free to believe and express his religious beliefs on an individual basis and the students’ Bible study club is free to meet as such off campus outside of school hours. There is no infringement of plaintiffs’ free exercise rights except to the limited extent made necessary by the establishment clause of the state and federal Constitutions.18

Judgment is affirmed.

 

Good News Club v. Milford Central School, 533 U.S. 98 (2001)

Justice THOMAS delivered the opinion of the Court.

This case presents two questions. The first question is whether Milford Central School violated the free speech rights of the Good News Club when it excluded the Club from meeting after hours at the school. The second question is whether any such violation is justified by Milford’s concern that permitting the Club’s activities would violate the Establishment Clause. We conclude that Milford’s restriction violates the Club’s free speech rights and that no Establishment Clause concern justifies that violation.

We first address whether the exclusion constituted viewpoint discrimination. Applying Lamb’s Chapel,3 we find it quite clear that Milford engaged in viewpoint discrimination when it excluded the Club from the afterschool forum. Thus, the exclusion of the Good News Club’s activities, like the exclusion of Lamb’s Chapel’s films, constitutes unconstitutional viewpoint discrimination.

Milford argues that, even if its restriction constitutes viewpoint discrimination, its interest in not violating the Establishment Clause outweighs the Club’s interest in gaining equal access to the school’s facilities. In other words, according to Milford, its restriction was required to avoid violating the Establishment Clause. We disagree.

The Good News Club seeks nothing more than to be treated neutrally and given access to speak about the same topics as are other groups. Because allowing the Club to speak on school grounds would ensure neutrality, not threaten it, Milford faces an uphill battle in arguing that the Establishment Clause compels it to exclude the Good News Club. Second, to the extent we consider whether the community would feel coercive pressure to engage in the Club’s activities, the relevant community would be the parents, not the elementary school children. It is the parents who choose whether their children will attend the Good News Club meetings. Because the children cannot attend without their parents’ permission, they cannot be coerced into engaging in the Good News Club’s religious activities. Whatever significance we may have assigned in the Establishment Clause context to the suggestion that elementary school children are more impressionable than adults, we have never extended our Establishment Clause jurisprudence to foreclose private religious conduct during non-school hours merely because it takes place on school premises where elementary school children may be present. Even if we were to inquire into the minds of schoolchildren in this case, we cannot say the danger that children would misperceive the endorsement of religion is any greater than the danger that they would perceive a hostility toward the religious viewpoint if the Club were excluded from the public forum.

When Milford denied the Good News Club access to the school’s limited public forum on the ground that the Club was religious in nature, it discriminated against the Club because of its religious viewpoint in violation of the Free Speech Clause of the First Amendment. Because Milford has not raised a valid Establishment Clause claim, we do not address the question whether such a claim could excuse Milford’s viewpoint discrimination.

 

Fox v. City of Los Angeles (1978), 22 Cal.3d 792

Fox v. City of Los Angeles (1978), 22 Cal.3d 792, 587 P.2d 663, 150 Cal.Rptr. 867

NEWMAN, J.

With regard to church-state relations the California declaration of rights proclaims first, ‘Free exercise and enjoyment of religion without discrimination or preference are guaranteed‘; second, there shall be ‘no law respecting an establishment of religion‘; third, ‘Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.‘ (Cal. Const., art. I, §§ 4, 24.) Yet for 30 years Los Angeles officials have authorized the illumination on the city hall of a huge cross — at first to honor the Christmas holidays and then also, during the 1970s, to honor Easter Sundays, both Latin and Eastern Orthodox. In a taxpayer’s suit the trial court issued a preliminary injunction against the city. Defendants appeal. We affirm.

The California Constitution, like the United States Constitution, does not merely proscribe an establishment of religion. Rather, all laws ‘respecting an establishment of religion‘ are forbidden. (Italics added.) The California Constitution also guarantees that religion shall be freely exercised and enjoyed ‘without discrimination or preference.‘ Preference thus is forbidden even when there is no discrimination. The current interpretations of the United States Constitution may not be that comprehensive.

The city hall is not an immense bulletin board whereon symbols of all faiths could be thumbtacked or otherwise displayed. The order granting the preliminary injunction is affirmed.

[Justice Newman’s brief, factually-oriented, and conclusory opinion led Chief Justice Bird to elaborate on the issues involved:]

BIRD, C. J.

I concur in the judgment of the majority. I write separately to express the reasons that persuade me that both the California and United States Constitutions prohibit the City of Los Angeles from displaying a symbol unique to one religion on the face of the very building housing the representatives of all the people.1 In detailed and comprehensive language, the delegates to the 1849 Convention committed this state to the fundamental policy of neutrality in matters of religion. Their legacy to us was a society where religion is a matter of faith, not law.

Article XVI, section 5 is an equally emphatic ban on state support of religion. It provides in pertinent part: ‘Neither the Legislature, nor any county, city and county, township, school district, or other municipal corporation, shall ever make an appropriation, or pay from any public fund whatever, or grant anything to or in aid of any religious sect, church, creed, or sectarian purpose, or help to support or sustain any school, college, university, hospital, or other institution controlled by any religious creed, church, or sectarian denomination whatever ….‘

This provision was new to the 1879 Constitution.3 It does not mirror or derive from any part of the federal Constitution. By the force of article XVI, section 5, the California Constitution since 1879 has precluded the spending of any public money to directly support any religious group. The adoption of this ban on state or local aid to religion was especially significant in light of the fact that the 1879 Constitutional Convention rejected numerous proposals involving religion. These included requests for a legal framework that would acknowledge God as the source of civil authority, prohibit blasphemy, and allow Bible reading in public schools. One such request stated that ‘a written Constitution should contain explicit evidence of the Christian character … of the State ….‘ The delegates chose instead to emphasize the separation of church and state by adding article XVI, section 5, and by retaining article I, section 4.

When a city so openly promotes the religious meaning of one religion’s holidays, the benefit reaped by that religion and the disadvantage suffered by other religions is obvious. Those persons who do not share those holidays are relegated to the status of outsiders by their own government; those persons who do observe those holidays can take pleasure in seeing the symbol of their belief given official sanction and special status.

The simple but crucial fact at issue is that the city government of Los Angeles has identified itself with the central symbol of one religion. As judges, it is our unmistakable constitutional duty to protect those of other faiths or no faith from the coercion toward conformity that attaches to every official endorsement of any religion, particularly the majority religion. Our ancestors would ask nothing less of us. Having experienced religious intolerance themselves, they understood that faith flourishes more freely in a sanctuary protected from the dictates of the majority.

The medium was the message. Once the cross blazed from the top stories of City Hall, some individuals obtained the satisfaction of knowing their faith was officially approved. Others had to pursue their faith knowing that beliefs they did not share had received official blessing.

The city emphasizes that the cross was displayed on Christmas for 30 years prior to 1975 without complaint. However, far from indicating acceptance, such silence may bespeak only the hesitancy of religious minorities to come forward to complain about the recognition given to the majority religion.

We must never forget that the religious freedom of every person is threatened whenever government associates its power with one particular religious tradition. Since the display of a sectarian symbol on the Los Angeles City Hall involves that city in the promotion of one particular religious faith, it violates both the California and United States Constitutions. Religious freedom is one of our most cherished heritages. As judges sworn to uphold the constitution, we have no more solemn duty than to preserve this heritage for our children just as our ancestors preserved it for us. This we can only do by guarding against every governmental intrusion, large or small, into the inner sanctum of conscience.

 

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

THE CHIEF JUSTICE [Burger] delivered the opinion of the Court.

We granted certiorari to decide whether the Establishment Clause of the First Amendment prohibits a municipality from including a crèche, or Nativity scene, in its annual Christmas display.

There is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789. One cannot look at even this brief resume without finding that our history is pervaded by expressions of religious beliefs such as are found in Zorach [v. Clauson (1952)]. Equally pervasive is the evidence of accommodation of all faiths and all forms of religious expression, and hostility toward none. This history may help explain why the Court consistently has declined to take a rigid, absolutist view of the Establishment Clause. In our modern, complex society, whose traditions and constitutional underpinnings rest on and encourage diversity and pluralism in all areas, an absolutist approach in applying the Establishment Clause is simplistic and has been uniformly rejected by the Court.

Rather than mechanically invalidating all governmental conduct or statutes that confer benefits or give special recognition to religion in general or to one faith—as an absolutist approach would dictate—the Court has scrutinized challenged legislation or official conduct to determine whether, in reality, it establishes a religion or religious faith, or tends to do so.

The Establishment Clause like the Due Process Clauses is not a precise, detailed provision in a legal code capable of ready application. The Clause erects a “blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.” In the line-drawing process we have often found it useful to inquire whether the challenged law or conduct has a secular purpose, whether its principal or primary effect is to advance or inhibit religion, and whether it creates an excessive entanglement of government with religion. Lemon. But, we have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area. The narrow question is whether there is a secular purpose for Pawtucket’s display of the crèche. The display is sponsored by the City to celebrate the Holiday and to depict the origins of that Holiday. These are legitimate secular purposes.

The District Court found that the primary effect of including the crèche is to confer a substantial and impermissible benefit on religion in general and on the Christian faith in particular. Comparisons of the relative benefits to religion of different forms of governmental support are elusive and difficult to make. But to conclude that the primary effect of including the crèche is to advance religion in violation of the Establishment Clause would require that we view it as more beneficial to and more an endorsement of religion, for example, than expenditure of large sums of public money for textbooks supplied throughout the country to students attending church-sponsored schools, Board of Education v. Allen, expenditure of public funds for transportation of students to church-sponsored schools, Everson v. Board of Education, federal grants for college buildings of church-sponsored institutions of higher education combining secular and religious education, noncategorical grants to church-sponsored colleges and universities, and the tax exemptions for church properties sanctioned in Walz. We can assume, arguendo, that the display advances religion in a sense; but our precedents plainly contemplate that on occasion some advancement of religion will result from governmental action. The Court has made it abundantly clear, however, that “not every law that confers an ‘indirect,’ ‘remote,’ or ‘incidental’ benefit upon [religion] is, for that reason alone, constitutionally invalid.”

It would be ironic, however, if the inclusion of a single symbol of a particular historic religious event, as part of a celebration acknowledged in the Western World for 20 centuries, and in this country by the people, by the Executive Branch, by the Congress, and the courts for two centuries, would so “taint” the City’s exhibit as to render it violative of the Establishment Clause. To forbid the use of this one passive symbol—the crèche—at the very time people are taking note of the season with Christmas hymns and carols in public schools and other public places, and while the Congress and Legislatures open sessions with prayers by paid chaplains would be a stilted over-reaction contrary to our history and to our holdings. If the presence of the crèche in this display violates the Establishment Clause, a host of other forms of taking official note of Christmas, and of our religious heritage, are equally offensive to the Constitution. It is far too late in the day to impose a crabbed reading of the Clause on the country.

We hold that, notwithstanding the religious significance of the crèche, the City of Pawtucket has not violated the Establishment Clause of the First Amendment.13 Accordingly, the judgment of the Court of Appeals is reversed.

 

California Teachers Assn. v. Riles (1981), 29 Cal.3d 794

California Teachers Assn. v. Riles (1981), 29 Cal.3d 794, 632 P.2d 953, 176 Cal.Rptr. 300

MOSK, J.

These cases concern the constitutionality of sections 60315 and 60246 of the Education Code, which authorize the Superintendent of Public Instruction to lend, without charge, textbooks used in the public schools to students attending nonprofit nonpublic schools, and which provide funds for that purpose.

Plaintiffs challenge these provisions on the ground that they violate the establishment clause of the First Amendment to the United States Constitution,2 article IX, section 8 of the California Constitution, which prohibits the appropriation of public money for the support of sectarian schools or schools not under the jurisdiction of the officers of the public schools,3 and article XVI, section 5 of our state Constitution, which contains an even broader injunction, forbidding the Legislature to grant “anything to or in aid of” any church or religious sect, or “help to support” any school controlled by a church or a sectarian denomination. We conclude that the statutes challenged by plaintiffs are unconstitutional because they violate the prohibition of article IX, section 8 and article XVI, section 5 of the California Constitution against the appropriation of money for the support of sectarian schools.

[After surveying U.S. Supreme Court Establishment Clause precedents but without basing his decision on them, Justice Mosk turned to:] cases interpreting our state constitutional provisions prohibiting aid to denominational schools. In assessing the validity of the program we consider first, whether it only indirectly benefits parochial schools, and second, the character of the benefit conferred by the program.

More important than [various] procedural considerations, however, is the inseparability of the benefit to the pupil and the school, and the impossibility of characterizing the advantage to one as remote and to the other as direct. The books are supplied for use in the school, and we are unable to perceive any significant distinction from a constitutional standpoint whether they are loaned to the students for use in the school, or to the school for use by the students. In either circumstance, both the child and the school benefit. The United States Supreme Court has recognized as much in characterizing textbook loan programs as a form of financial assistance to the school even though the loan is nominally made to the student.14 There is no rational reason for concluding that the school benefits only indirectly or remotely from the loan if the child is the nominal recipient, for it is an undeniable fact that books are a critical element in enabling the school to carry out its essential mission to teach the students.

The conclusion that the benefit to religious schools provided by section 60315 is neither indirect nor remote does not end our inquiry, however, for not all public expenditures directly for the benefit of sectarian schools are prohibited (e.g., providing fire protection), and not all expenditures for the immediate benefit of children are valid (e.g., reimbursement for the purchase of religious articles by students in public and nonpublic schools). The question still remains whether the character of the benefit provided by the textbook loan program results in the “support of any sectarian … school. …” By providing textbooks at public expense, the loan program appropriates money to advance the educational function of the school.

It is not the meaning of the First Amendment which is critical to our determination, but section 8 of article IX and section 5 of article XVI of the California Constitution. Those provisions do not confine their prohibition against financing sectarian schools in whole or in part to support for their religious teaching function, as distinguished from secular instruction.

We conclude that section 60315 is unconstitutional because it violates section 8 of article IX and section 5 of article XVI of the California Constitution by appropriating funds for the support of sectarian schools. The judgments are reversed.

 

Board of Education v. Allen, 392 U.S. 236 (1968)

Mr. Justice WHITE delivered the opinion of the Court.

A law of the State of New York requires local public school authorities to lend textbooks free of charge to all students in grades seven through 12; students attending private schools are included. This case presents the question whether this statute is a ‘law respecting an establishment of religion, or prohibiting the free exercise thereof,’ and so in conflict with the First and Fourteenth Amendments to the Constitution, because it authorizes the loan of textbooks to students attending parochial schools. We hold that the law is not in violation of the Constitution.

Underlying [ U.S. Supreme Court cases of the previous two decades] has been a recognition that private education has played and is playing a significant and valuable role in raising national levels of knowledge, competence, and experience. Americans care about the quality of the secular education available to their children. They have considered high quality education to be an indispensable ingredient for achieving the kind of nation, and the kind of citizenry, that they have desired to create. Considering this attitude, the continued willingness to rely on private school systems, including parochial systems, strongly suggests that a wide segment of informed opinion, legislative and otherwise, has found that those schools do an acceptable job of providing secular education to their students.9 This judgment is further evidence that parochial schools are performing, in addition to their sectarian function, the task of secular education.

Against this background of judgment and experience, unchallenged in the meager record before us in this case, we cannot agree with appellants either that all teaching in a sectarian school is religious or that the processes of secular and religious training are so intertwined that secular textbooks furnished to students by the public are in fact instrumental in the teaching of religion. We are unable to hold, based solely on judicial notice, that this statute results in unconstitutional involvement of the State with religious instruction or that s 701, for this or the other reasons urged, is a law respecting the establishment of religion within the meaning of the First Amendment.

The judgment is affirmed.

 

federal and state interpretations harmonious

Bowker v. Baker (1946), 73 Cal.App.2d 653

Bowker v. Baker (1946), 73 Cal.App.2d 653, 167 P.2d 256

MARKS, J.

This is an appeal from a judgment which denied plaintiff an injunction by which he sought to restrain defendants from permitting pupils attending a parochial school from riding in buses owned and operated by the Porterville School District. On January 10, 1944, plaintiff filed this action. He alleged that pursuant to the resolution, pupils of a parochial school operated by the Roman Catholic Church were riding on public school buses, and sought to enjoin this practice.

[After reviewing decisions from other states dealing with similar challenges, Judge Marks observed:] The general line of reasoning running through those cases which uphold the right of the school district to provide free transportation for school children finds its starting point in the undoubted police power of the state to promote the public welfare by aiding in practical ways the education of the young. It is generally held that the direct benefit conferred is to the children with only an incidental and immaterial benefit to the private schools; that this indirect benefit is not an appropriation of public moneys for private purposes and does not violate any constitutional provisions against giving state aid to denominational schools.

When we consider the complexities of our modern life we realize that many expenditures of public money give indirect and incidental benefit to denominational schools and institutions of higher learning. Sidewalks, streets, roads, highways, sewers are furnished for the use of all citizens regardless of religious belief. No one has yet challenged the right of any law abiding citizen to travel to a school over a highway built with public funds because of his religious beliefs or because he is attending a denominational institution, yet . . . without roads over which pupils could reach the school there would be no school. Police and fire departments give the same protection to denominational institutions that they give to privately owned property and their expenses are paid from public funds. If St. Anne’s Parochial School caught fire would the plaintiff argue that the Porterville fire department responding to the call should stand by idle until the flames spread to privately owned buildings before attempting to extinguish the conflagration because the cost of the firefighting equipment and the salaries of the firemen are paid by funds raised by general taxation?

In view of the broad police powers of the state to promote the educational welfare and safety of its citizens, including little children, of the broad mandate to the Legislature found in section 1, article IX of the Constitution, of the fact that the direct benefit of the legislation authorizing the transportation of pupils attending private schools flows to the children in providing for their safety and promoting their education, with only an indirect benefit to the private parochial school, and in view of the rule that requires us to resolve any doubt in favor of the constitutionality of a challenged act of the Legislature, we conclude that the legislation is constitutional and is not subject to the attack made here.

 

[The United States Supreme Court reached a similar conclusion in Everson v. Board of Education, 330 U.S. 1 (1947). In dicta, Justice Hugo Black wrote:] “The ‘establishment of religion’ clause of the First Amendment means at least this: 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.’ “

[Justice Black nevertheless concluded in language similar to Judge Marks’s, that a New Jersey program that reimbursed parents of parochial school children for their expenses in riding public transportation to their schools did not offend the Establishment Clause of the federal Constitution:] “state-paid policemen, detailed to protect children going to and from church schools from the very real hazards of traffic, would serve much the same purpose and accomplish much the same result as state provisions intended to guarantee free transportation of a kind which the state deems to be best for the school children’s welfare. And parents might refuse to risk their children to the serious danger of traffic accidents going to and from parochial schools, the approaches to which were not protected by policemen. Similarly, parents might be reluctant to permit their children to attend schools which the state had cut off from such general government services as ordinary police and fire protection, connections for sewage disposal, public highways and sidewalks. Of course, cutting off church schools from these services, so separate and so indisputably marked off from the religious function, would make it far more difficult for the schools to operate. But such is obviously not the purpose of the First Amendment. That Amendment requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions, than it is to favor them.

The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here.”

 

Gordon v. Board of Education (1947), 78 Cal.App.2d 464

Gordon v. Board of Education (1947), 78 Cal.App.2d 464, 178 P.2d 488

DRAPEAU, J. pro tem.

Section 8286 of the Education Code was added to our laws by legislative enactment in 1943. This section provides that pupils, with the written consent of their parents, may be excused from schools to participate in religious exercises or to receive moral and religious instruction. Petitioner is a taxpayer, and applied to the superior court for a writ of mandate to compel the Board of Education to discontinue the released-time plan. The petition alleged that the statute is void because it is in contravention of the Constitution of California, and that the released-time plan as carried on in Los Angeles violates not only the Constitution and laws of the state but also the Constitution of the United States. The trial court found against petitioner, denied the petition, and the case is now before this court on appeal.

The primary question for decision here is whether the operation of the released-time plan in Los Angeles under section 8286 of the Education Code is unconstitutional.

[Judge Drapeau reviewed precedents form other states, principally New York, upholding the released time program.] This then brings us to a consideration of the California constitutional provisions and their application to the case at bar. Reference to the debates of the constitutional convention which presented the Constitution of 1879 to the people of California demonstrates that there was no thought whatsoever in the minds of the framers of that document in opposition to or of hostility to religion as such. They proposed to insure separation of church and state, and to provide that the power and the authority of the state should never be devoted to the advancement of any particular sect or denomination. Our pioneer forefathers did not have the remotest idea that they were laying the foundations of the great Commonwealth of California that was to be as a jejune, godless state; they believed one of the great pillars of our national strength to be the general acceptance of religion by our people.

No one who keeps pace with the trends of modern society can deny that instruction of the youth of the state in faith and morality is of utmost necessity and importance. All too regretfully it must be said that in present-day American life the family as a unit has not done its part in this vital field of education of our boys and girls. Else juvenile courts would not be groaning under an avalanche of cases of derelictions of children. What more logical advance could be made in the science of sociology than the unification of religious leaders in a coordinated effort to teach children faith and morality-and for that purpose to excuse them from schools for one hour a week to go to the church or tabernacle or synagogue of their parents’ choice?

Description of the released-time plan demonstrates it to be nonsectarian and not in violation of section 4 of article I of our Constitution, nor of the Constitution of the United States. Measured by the standards set forth in the foregoing authorities, in the operation of the released-time plan in Los Angeles, there is no appropriation of public money in support of any sect or denomination and no teaching of sectarianism in the school system of Los Angeles County in violation of section 8 of article IX of the California Constitution.

WHITE, J.

I concur with the foregoing opinion and the reasoning supporting it.

That the legislation which gave rise to this proceeding is not in the remotest degree tinged with sectarianism or denominationalism is attested by the fact that arrayed in defense of the constitutionality of the challenged Education Code section are parents whose children, under the Released Time Religious Educational Program, are being instructed in the Jewish, various Protestant, and Roman Catholic religious faiths.

Throughout her entire argument, appellant misconceives the American principle of religious freedom. What she contends for is freedom from religion rather than freedom of religion. Appellant’s argument leads one to the conclusion that the doctrine of separation of church and state looks upon religion as something intrinsically evil, and against which there should be a rigid quarantine. Nothing is farther from the true concept of the American philosophy of government than such an argument. In the constitution of every state of the union is to be found language which either directly, or by clear implication, recognizes a profound reverence for religion and an assumption that its influence in all human affairs is essential to the well-being of the community.

History, both ancient and modern, bears striking witness to the inevitable fate that has befallen peoples whose government has engaged in undermining or destroying belief in the existence of God and attempted to replace Him with idols, either in the form of a man, groups of men, or of the state. Inalienable, natural rights of every kind disappeared and the individual became but the pawn and chattel of the state, stripped of any rights, privileges or guaranties except such as might be conferred upon him by the state-a veritable system of ignominious slavery.

[In Zorach v. Clauson, 343 U.S. 306 (1952), the United States Supreme Court reached a similar conclusion in a case involving New York City’s released time program. In his opinion, Justice William O. Douglas stated: ”We are a religious people whose institutions presuppose a Supreme Being.”]

 

Sands v. Morongo Unified School Dist. (1991), 53 Cal.3d 863

KENNARD, J. [Note that Justice Kennard’s opinion is only for a plurality, consisting of herself and Justices Mosk and Broussard. But as Chief Justice Lucas noted in his concurrence: “Three justices have concluded that the practice violates our state Constitution, two have concluded it does not, and two (myself included) have declined to reach any state constitutional issues. Therefore, our judgment does not rest on the state Constitution; any resolution of the state constitutional issues will necessarily await another day.”]

In this case we hold that religious invocations and benedictions at public high school graduation ceremonies are constitutionally impermissible. Our review of applicable precedent convinces us that this practice violates the guarantees found in the United States and California Constitutions that religion and government shall remain separate.

Ours is a nation composed of people of many different races and faiths. Some are Native Americans, many of whom adhere to beliefs formed here over many centuries; others are immigrants, or the descendants of immigrants, many of whom came here to escape religious persecution. The historical fact of our diverse origins and beliefs is a vital part of our national heritage and central to the meaning of the establishment and free exercise clauses of the First Amendment to the United States Constitution. The establishment clause reflects and implements the fundamental wisdom that freedom of religion flourishes only when government observes strict adherence to the principle of separation of religion and state authority. Government- sponsored religious invocations and benedictions at public school graduation ceremonies contravene the fundamental principle of governmental neutrality and abstention in matters affecting religious beliefs and practices.

[Justice Kennard first addressed issues under the federal Establishment Clause:]

The Lemon test has remained controlling law for 20 years.3 We are required to decide federal constitutional cases on the law as it presently exists. Accordingly, we apply the Lemon test in this case. If a challenged governmental action fails any of the three requirements of the Lemon test, it is unconstitutional. Although we have doubts whether the government-sponsored prayers at issue here pass the “secular purpose” test, that question need not be addressed because we conclude that the practice of government sponsorship of graduation prayers fails both the “effect” and the “entanglement” tests of Lemon, thus rendering the practice unconstitutional.

Regardless of its actual purpose, when the government sponsors prayers at high school graduation ceremonies it gives the appearance of taking a position on religious questions. Through the practices challenged in this case, the government appears to prefer religion over nonreligion; appears to prefer religions that acknowledge the practice of petitionary prayer over religions that do not recognize such prayer; appears to prefer the religious belief that prayer should be public over the belief that prayer should be private; and implicitly endorses religions that address a single, anthropomorphic, and male deity over those that do not.

Government supervision of religious practices is fundamentally inconsistent with the concept of separation of religion and civil authority. The practice of including prayers at public high school graduation ceremonies impermissibly entangles government in religious matters in two ways: It involves governmental selection or approval of religious speakers and governmental approval of the content of public prayer.

B. The Religion Clauses of the California Constitution

The California Constitution contains guarantees of the separation of religion and state in addition to those found in the federal Constitution. In language virtually identical to the First Amendment’s establishment clause, our state Constitution declares, “The Legislature shall make no law respecting an establishment of religion.” (Cal. Const., art. I, § 4.) Although federal cases may supply guidance for interpreting this provision, California courts must independently determine its scope. (Cal. Const., art. I, § 24). The practice of government endorsement of graduation prayers not only violates the establishment clause of the federal Constitution but independently violates the separation of religion and government set forth in the corresponding clause of the California Constitution.

Two other provisions of the state Constitution, having no counterparts in the federal charter, provide additional guarantees that religion and government shall remain separate. Section 4 of article I guarantees the “free exercise and enjoyment of religion without discrimination or preference ….” The California Constitution further provides: “Neither the Legislature, nor any county, city and county, township, school district, or other municipal corporation, shall ever make an appropriation, or pay from any public fund whatever, or grant anything to or in aid of any religious sect, church, creed, or sectarian purpose ….” (Cal. Const., art. XVI, § 5.) This section prohibits not only material aid to religion, but any official involvement that promotes religion. As we have explained, government sponsorship of prayer promotes religion. Accordingly, religious invocations and benedictions at public school graduation ceremonies are prohibited by article XVI, section 5 of the state Constitution as well.

III. Conclusion

Ours is a religiously diverse nation. Within the vast array of Christian denominations and sects, there is a wide variety of belief and practice. Moreover, substantial segments of our population adhere to non-Christian religions or to no religion.11 Respect for the differing religious choices of the people of this country requires that government neither place its stamp of approval on any particular religious practice, nor appear to take a stand on any religious question. In a world frequently torn by religious factionalism and the violence tragically associated with political division along religious lines, our nation’s position of governmental neutrality on religious matters stands as an illuminating example of the true meaning of freedom and tolerance.

Because the practice of officially endorsed prayers at public school graduation ceremonies cannot be reconciled with the constitutional principles of religious freedom and official neutrality, we reverse the judgment of the Court of Appeal.

LUCAS, C. J., concurring.

I write separately for two reasons. First, This case lies at the crossroads between public instruction and public ceremony. As such, it affords an opportunity to reexamine basic principles and values underlying the religion clauses of the First Amendment. Second, I would not reach the state constitutional issues raised by the parties. Resolution of those issues is not necessary to our decision. Particularly in light of the importance of this case and the climate in which it is decided, I would await the guidance that will emanate from full consideration of the First Amendment issues by the United States Supreme Court before exercising our independent powers to construe provisions of the California Constitution. In this way, we can best carry out our authority to proceed in a manner that is “informed but untrammeled” by the views of the high court.

II. The California Constitutional Provisions

As stated above, having concluded that the practice of graduation prayers violates the establishment clause of the First Amendment as construed in light of the Supreme Court’s Lemon test, I would not reach plaintiffs’ contentions that the practice violates provisions of the California Constitution as well.

As a result of the various opinions filed in this case, three justices have concluded that the practice violates our state Constitution, two have concluded it does not, and two (myself included) have declined to reach any state constitutional issues. Therefore, our judgment does not rest on the state Constitution; any resolution of the state constitutional issues will necessarily await another day.

The posture of constitutional argument in this case is frequently encountered. Legislation or government action is challenged as unconstitutional under both the state and federal Constitutions. If the statute or action is determined to be invalid under either Constitution, the case is thus disposed of; the other can, but need not, be considered. If on the other hand, the statute or action is upheld under either Constitution, the other must be considered to resolve the entire controversy between the parties. Two questions inevitably arise: (1) which constitutional ground, federal or state, should be considered first; and (2) if the case can be disposed of on the ground first considered, should the remaining ground nonetheless be reached?

The views of my colleagues are divided on these questions. My research has revealed no systematic consideration of these issues in any of our opinions and divergent patterns in our decisionmaking. Because I believe a principled approach to these questions is not only possible, but essential, I will explain why I have decided to consider the federal constitutional issues first and forgo consideration of the state constitutional issues in this case.

The California Constitution is the supreme law of our state-a seminal document of independent force that establishes governmental powers and safeguards individual rights and liberties. As the Supreme Court of California, we are the final arbiters of the meaning of state constitutional provisions. Our authority and responsibility in this regard is part of the basic structure of California government; it cannot be delegated to the United States Supreme Court or any other person or body. When we construe provisions of the California Constitution, we necessarily do so in light of their unique language, purposes, and histories, in accordance with general principles of constitutional interpretation established in our case law. Nor do we act differently when the state constitutional provision in issue contains the same language as a federal constitutional provision. In such a case, we are not bound by a decision of the United States Supreme Court or any other court. We must consider and decide the matter independently. Our policy of deference to United States Supreme Court decisions does not signify subservience or abdication of authority. It simply recognizes certain basic realities of constitutional adjudication. The United States Supreme Court is a judicial tribunal devoted in large measure to consideration of complex constitutional rights and liberties; it is the primary interpreter and protector of the guaranties of the Bill of Rights, which is the most comprehensive and far-reaching document of civil rights and liberties in our nation.

Although we only rarely consider cases like this one which raise fundamental issues of liberty going to the central fabric of our society, such questions are daily grist for the mill of the [United States] Supreme Court. In view of these circumstances, and in the absence of other compelling considerations, we do well to invite and await its views before giving final and definitive answers to complex and difficult questions of constitutional law. In this way, we can give appropriate deference to its views (as our cases require) and proceed in a fashion that is “informed but untrammeled” by federal constitutional principles. If, on the other hand, we leap into the breach, finally resolving the state constitutional question, we deprive ourselves of the prospect of input not only from the high court but from other state and federal courts that may consider the issue.

Conclusion

Lying, as it does, at the crossroads of constitutional principles and American traditions, the practice at issue in this case evokes great interest and strong feelings. There are sound reasons, validated by history and tradition, for government’s disengagement from religion and for its benign recognition of religion as part of culture in the form of prayerful acknowledgement of a Supreme Being at public ceremonies. The republic has survived and religious diversity has flourished under the parallel operation of both of these principles. Although a strict application of the test may invalidate the practice at issue here, a more sensitive and balanced application of these underlying principles may sustain it. In either event, First Amendment doctrine must fairly consider both principles if it is to be consistent with both the intent of the framers and the tenor of our times.

MOSK, J., concurring.

I concur in Justice Kennard’s well-reasoned opinion holding that religious invocations and benedictions at public high school graduation ceremonies violate both the federal and California Constitutions. I write separately to explain further why our state charter compels this result. Federal cases to which I refer are merely illustrative; in my view our state authorities are controlling in this matter.

Indeed, as the highest court of this state, we are independently responsible for safeguarding the rights of our citizens. State courts are, and should be, the first line of defense for individual liberties in the federal system. It is unnecessary to rest our decision on federal authority when the California Constitution alone provides an independent and adequate state constitutional basis on which to decide.

In his separate concurrence the Chief Justice virtually begs the Supreme Court to relieve us of our duty under the Constitution of California. Such a supplication is unprecedented. We are not a branch of the federal judiciary; we are a court created by the Constitution of California and we owe our primary obligation to that fundamental document. Only if an issue cannot be determined with finality under state constitutional doctrine do we turn to federal authority for assistance.

It is undisputed that provisions of the California Constitution are not dependent for their meaning on the federal Constitution. Particularly with regard to the provisions of the California Constitution that apply to religion in public schools (Cal. Const., art. I, § 4, art. XVI, § 5, art. IX, § 8), the different history of our charter justifies the difference in interpretation. It is true that in Marsh v. Chambers (1983), the United States Supreme Court pointed to the entanglement of government and religion in post-Colonial America to support its conclusion that the drafters of the First Amendment would not have prohibited invocational prayer. That historical discussion, however, is irrelevant to the question of the meaning of the California Constitution. Undoubtedly, there had been considerable entanglement of church and state in Spanish California, but the delegates to the 1849 constitutional convention had no intention of returning to such a relationship.1 Rather, the convention delegates scrutinized the United States Constitution and the constitutions of the other states, and carefully selected the language that provided the greatest level of protection to California citizens.

For example, article I, section 4, of the California Constitution had its origin in the New York Constitution, and first appeared at the New York Constitutional Convention of 1777. It was chosen by the delegates to the California Constitutional Convention of 1849 over a provision of the Virginia Constitution that referred to the duty owed the “Creator” and the duty of “Christian forbearance, love and charity.”

This absolute separation of church and state was firmly recognized from the initial days of California jurisprudence. As early as 1858, Chief Justice Terry wrote in Ex parte Newman (1858) 9 Cal. 502, 506-507: “When our liberties were acquired, our republican form of government adopted, and our Constitution framed, we deemed that we had attained not only toleration, but religious liberty in its largest sense-a complete separation between Church and State . For additional emphasis, in 1879 the delegates to the state constitutional convention of that year amended article I, section 4, to provide that in California the free exercise of religion shall be “guaranteed,” not simply “allowed.”

Article I, section 4, provides, “Free exercise and enjoyment of religion without discrimination or preference are guaranteed. … The Legislature shall make no law respecting an establishment of religion.” To be sure, the establishment clause of this section is virtually identical to its federal counterpart.3 But the free exercise clause (hereafter the preference clause) of article I, section 4, is without parallel in the federal Constitution. Our case law has also recognized the strength of this clause, and acknowledged that in some instances it might warrant a separation of church and state more strict than that called for in the federal Constitution. The preference clause seeks to prevent government from giving any advantage to religion in California. The relevant inquiry is whether government has granted a benefit to a religion or religion in general that is not granted to society at large. Once government bestows that differential benefit on religion, it has acted unconstitutionally in this state.4

Thus the issue is whether the challenged program of the Morongo Unified School District establishes an unconstitutional preference in violation of article I, section 4. I conclude that it does. The use of a theistic prayer to “solemnize” a high school graduation confers a benefit on a particular form of religious expression by granting it a special, rather exalted, place at the commencement of an important and otherwise secular ceremony. This form of prayer, and the religious world view that underlies it, is thereby invested with the prestige with which the importance of the occasion endows it. Further, the selection of a member of the clergy for the express purpose of performing a religious act-a prayer-clearly grants a preferential benefit to religion and to a particular religion. Such a practice is therefore unconstitutional under article I, section 4.

PANELLI, J., dissenting.

The majority holds that the establishment clause of the United States Constitution outlaws the long-standing tradition of including religious invocations and benedictions in high school graduation ceremonies. I respectfully dissent.

Because controlling precedent does not, in my view, compel the majority’s choice, and because another approach might well lead to a different result, the parties are entitled to ask for a somewhat fuller explanation of that choice than one finds in the opinion.

The lead opinion’s analysis does not take account of another line of authority which, in my view, would permit us to uphold religious invocations and benedictions at graduation ceremonies. In several opinions the [United States Supreme Court] has held that the establishment clause permits the government to accommodate expressions of religious belief in public life. Invocations at high school graduation ceremonies are similar to the many accommodations which the Supreme Court has held, or assumed, to be acceptable under the First Amendment.

Three justices of this court would also hold that religious invocations and benedictions at high school graduation ceremonies violate the California Constitution. While the court does not today resolve this issue, I consider it important to give voice to the other side of the debate.

I find nothing in the history of this provision to support the conclusion that its framers intended to erect a “wall of separation” higher than that established by the federal establishment clause. Indeed, to the extent the concept of “separation” might counsel official toleration of illegal acts compelled by religious belief, the framers appear to have intended a somewhat lower wall. I cannot find in the “preference or discrimination“ clause an intent to erect the absolute ”wall of separation“ that would justify a decision to ban religious invocations at high school graduation ceremonies. Instead, the clause appears to add only the requirement that the state not prefer, or discriminate against, a particular sect. This requirement can be met by having the invocation delivered, on a rotating basis, by speakers representing various points of view.

For these reasons I respectfully dissent.

 

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

Justice KENNEDY delivered the opinion of the Court

School principals in the public school system of the city of Providence, Rhode Island, are permitted to invite members of the clergy to offer invocation and benediction prayers as part of the formal graduation ceremonies for middle schools and for high schools. The question before us is whether including clerical members who offer prayers as part of the official school graduation ceremony is consistent with the Religion Clauses of the First Amendment, provisions the Fourteenth Amendment makes applicable with full force to the States and their school districts.

The controlling precedents as they relate to prayer and religious exercise in primary and secondary public schools compel the holding here that the policy of the city of Providence is an unconstitutional one.

The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause. It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which “establishes a [state] religion or religious faith, or tends to do so. The State’s involvement in the school prayers challenged today violates these central principles.

That involvement is as troubling as it is undenied. A school official, the principal, decided that an invocation and a benediction should be given; this is a choice attributable to the State, and from a constitutional perspective it is as if a state statute decreed that the prayers must occur.

As we have observed before, there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools. What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.

 

East Bay Asian Development Corp. v. State (2000), 24 Cal.4th 693

East Bay Asian Local Development Corp. v. State (2000), 24 Cal.4th 693, 102 Cal.Rptr.2d 280

BAXTER, J.

This case presents issues arising under the establishment clause of the First Amendment to the United States Constitution,1 and under article I, section 42 and article XVI, section 5 of the California Constitution. The question on which review was granted asks: Does a state law granting religiously affiliated organizations the authority to declare themselves exempt from historic preservation laws violate the establishment clause of the United States Constitution or any of the California Constitution religion clauses? The question arises in the context of a facial challenge to Government Code sections 25373 and 37361,3 which have the effect of granting an exemption from landmark preservation laws to noncommercial property owned by a religious organization that objects to landmark designation and determines in a public forum that the organization would suffer a substantial hardship if the property were designated a historic landmark.

We conclude that sections 25373 and 37361 are not facially invalid under the establishment clause of article I, section 4 or the First Amendment. We also conclude that the exemption created by those provisions does not violate the no-preference provision of article I, section 4, or article XVI, section 5 of the California Constitution (article XVI, section 5).

[After an extensive analysis of First Amendment Establishment Clause precedent, the Court concluded that:] sections 25373 and 37361 do not run afoul of the establishment clause of the First Amendment.

We reach the same conclusion under the California Constitution.

Because the California Constitution is a document of independent force, the rights it guarantees are not necessarily coextensive with those protected by the federal Constitution. We do not believe, however, that the protection against the establishment of religion embedded in the California Constitution creates broader protections than those of the First Amendment. We are satisfied that the California concept of a “law respecting an establishment of religion” coincides with the intent and purpose of the First Amendment establishment clause.

We reach this conclusion because the establishment clause was not added to article I, section 4 until 1974. We have long emphasized that there must be cogent reasons for a departure from a construction placed on a similar constitutional provision by the United States Supreme Court. That admonition has particular force when the expressly stated purpose of the provision was to add a protection already part of the federal Constitution to our charter of liberties. Our construction of the establishment clause of article I, section 4 is therefore guided by decisions of the [United States] Supreme Court.

This court has never had occasion to definitively construe the no-preference clause of article I, section 4 and we need not do so here. In guaranteeing free exercise of religion “without discrimination or preference,” the plain language of the clause suggests, however, that the intent is to ensure that free exercise of religion is guaranteed regardless of the nature of the religious belief professed, and that the state neither favors nor discriminates against religion. Having concluded above that an exemption from a landmark preservation law satisfies all prongs of the Lemon test, it follows that the exemption is neither a governmental preference for or discrimination against religion.

Neither the history nor the language of the no-preference clause supports plaintiffs’ argument that the clause bans governmental accommodation of religion or religious belief in general. We do not agree, therefore, that the no-preference clause bars exemption from landmark preservation ordinances for property owned by a religious entity as a constitutionally impermissible preference for religion and discrimination against nonreligious owners of noncommercial property subject to landmark designation.

Permitting a religious entity to exempt its noncommercial property from landmark designation status simply leaves the property in the status it otherwise occupied. While there may be a benefit as compared to properties that are subjected to landmark designation, neither the state nor the local governmental entity expends funds, or provides any monetary support, for the exempted property or its owner.

Nothing in California Educational Facilities Authority v. Priest suggests that exempting these properties from the restrictions of landmark status violates article XVI, section 5. The exemption does not give rise to any governmental involvement in the entities or institutions that benefit from the exemption, and even assuming that some parochial schools will benefit from the exemption, that benefit is not the “support” contemplated by and banned by article XVI, section 5.

We conclude therefore, that no provision of the federal or state Constitution is violated by the Legislature’s creation of exemptions from local landmark preservations laws for property owned by religious entities. As the Court of Appeal held, these exemptions simply free the owners to use the property as they would have done had the property not been designated a historic landmark.

 

State issues having no federal counterpart

California Educational Facilities Authority v. Priest (1974), 12 Cal.3d 593

California Educational Facilities Authority v. Priest (1974), 12 Cal.3d 593, 526 P.2d 513, 116 Cal.Rptr. 361

[Note that this case was decided before the Establishment Clause was added to the California Constitution. Its significance lies in the fact that the principles it enunciated did not depend on explicit Establishment language, but rather were implied in the pre-1974 constitutional order.]

MOSK, J.

Petitioners California Educational Facilities Authority and University of the Pacific seek an original writ of mandate to compel respondent state Treasurer to prepare to sell certain bonds authorized by the California Educational Facilities Authority Act. Respondent declines to take the steps necessary to sell the bonds because serious questions have been raised as to the constitutionality of the Act. We conclude the Act is valid and that a peremptory writ should issue as prayed.

Turning to the merits, we first address respondent’s contention that the implementation of the Act will result in furnishing state aid to sectarian institutions of higher education in violation of the establishment clause of the First Amendment to the United States Constitution, and related provisions of the California Constitution (art. I, § 4; art. IX, § 8.

[After finding that the proposed bond issue did not offend the federal Constitution’s Establishment Clause under the Lemon test, Justice Mosk went on:]

We further hold that neither the Act nor the proposed bond issuance violates the several California constitutional provisions prohibiting state aid for sectarian purposes.

The challenged measure is not violative of [Art. I, sec. 4]. The Act is religiously neutral; it neither favors, fosters, nor establishes any religion; nor does it in any way, directly or indirectly, infringe upon the free exercise rights of the people of this state.

An examination of the debates of the constitutional convention which drafted the Constitution of 1879 indicates that the provision [ban on spending for the benefit of churches or sectarian institutions] was intended to insure the separation of church and state and to guarantee that the power, authority, and financial resources of the government shall never be devoted to the advancement or support of religious or sectarian purposes. Under this section, the fact that a statute has some identifiable secular objective will not immunize it from further analysis to ascertain whether it also has the direct, immediate, and substantial effect of advancing religion.

The section has never been interpreted, however, to require governmental hostility to religion, nor to prohibit a religious institution from receiving an indirect, remote, and incidental benefit from a statute which has a secular primary purpose.

Thus the crucial question is not whether the Act provides such a benefit, but whether that benefit is incidental to a primary public purpose.12 The framers of the Constitution recognized the importance of education in our social fabric, and imposed a constitutional duty on the Legislature to “encourage by all suitable means the promotion of intellectual … improvement.” (Art. IX, § 1.) The present law is responsive to that mandate. The Legislature has expressly determined that the Act, in supporting the maintenance and improvement of facilities for higher education, is in the public interest and that determination is entitled to great deference.

We conclude the Act here challenged is constitutional.

 

California Statewide Communities . . . v. All Persons . . . (2007), 40 Cal.4th 788

KENNARD, J.

Recognizing that an educated citizenry and workforce are vital to the preservation of the rights and liberties of the people of this state, California in 1879 included in its new Constitution a provision directing the state Legislature to encourage “by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement.” (Cal. Const., art. IX, § 1.) Since 1879, our state Constitution has also included a provision prohibiting state and local governments from granting anything “in aid of any … sectarian purpose, or helping to support or sustain any school, college, university, hospital, or other institution controlled by any … sectarian denomination whatever….” (Cal. Const., art. XVI, § 5).

Against that backdrop, this court in California Educational Facilities Authority v. Priest (1974) upheld a state bond program funding the construction of educational facilities at religiously affiliated colleges, which were expressly prohibited from using the bond proceeds (paid for by private purchasers of the bonds) for specified religious purposes. We concluded that neither the state nor the federal Constitution prohibited this form of indirect assistance to religiously affiliated colleges, a rule that for more than three decades has allowed California public entities to issue revenue bonds to raise private funds for campus improvements at religiously affiliated colleges. We declined in Priest, however, to decide whether that rule would also apply if a college were “pervasively sectarian,” a term the United States Supreme Court had used . . . to describe a religiously affiliated school that devotes a substantial portion of its functions to its religious mission. Our decision in Priest is pivotal here.

This case involves bond financing agreements between a public entity and three religiously affiliated schools that, for purposes of this litigation, the parties have assumed to be pervasively sectarian. These schools are thus likely to include a religious perspective in their teachings. Each agreement expressly prohibits use of the bond proceeds for specified religious purposes. And, as in Priest, funds for the projects will not come from any government entity, but from private-sector purchasers of the bonds, and no public entity will have any obligation on the bonds in the event of default by the schools.

At issue is whether the Authority’s conduit financing agreements with Oaks Christian School, California Baptist University, and Azusa Pacific University violate our state Constitution’s article XVI, section 5. At issue is whether the Authority’s proposed indirect assistance to the three schools, through its issuance of revenue bonds, would be “aid of any … sectarian purpose” or “help to support any school … controlled by any … sectarian denomination,” as prohibited by section 5 of article XVI of the state Constitution.

From . . . statements in Priest we distill the following four-part test for determining whether the issuance of government bonds benefiting a religiously affiliated school violates the state constitutional provision in question: (1) The bond program must serve the public interest and provide no more than an incidental benefit to religion; (2) the program must be available to both secular and sectarian institutions on an equal basis; (3) the program must prohibit use of bond proceeds for “religious projects”; and (4) the program must not impose any financial burden on the government.

Having concluded that the second, third, and fourth requirements of Priest are satisfied, we still need to determine whether the bond program meets Priest’s first requirement, that the program provide a public benefit and no more than incidentally benefit religion. Here, the proposed state bond program would benefit three schools that the Authority throughout this litigation has described as “pervasively sectarian.” Would that bond program satisfy Priest’s first requirement, that the program serve the public interest and no more than incidentally benefit religion?

To answer that question, we need to examine the bond program’s purpose and effects. The program must have a “primary purpose … to advance legitimate public ends” , and its effects may not include a benefit to religious activity that is other than “indirect, remote, [or] incidental” to the primary secular purpose . When a court attempts to determine how, if at all, a bond program would have the effect of supporting religious activity at schools, the characterization of the schools as “pervasively sectarian” does not provide a reliable or satisfactory answer. A more useful and effective approach, we conclude, is to examine the substance of the education that each of these religious schools offers its students.

[In Priest,] we concluded that the provision of tax exempt bond financing did not violate article XVI, section 5, because “its primary purpose [was] to advance legitimate public ends” and it “did not have a substantial effect of supporting religious activities.” Can the same be said of the proposed bond funding in this case with respect to a school that includes a religious perspective in its curriculum? The answer is yes, if certain requirements are met.

First, the school that is the subject of the revenue bond financing arrangement must provide a broad curriculum in secular subjects. We are mindful of the concern that a school with a religious perspective may use the facilities built or improved with the revenue bond proceeds to substantially further its religious mission. Such use would provide more than an incidental benefit to religion, in violation of the principles we enunciated in Priest. To ensure that the classes in secular subjects promote the state’s interest in secular education and no more than incidentally benefit religion, the religious school must meet a second requirement: the information and coursework used to teach secular subjects must be neutral with respect to religion. Of course, religion may be an object of study in classes such as history, social studies, and literature, just as in public schools, in a manner that neither promotes nor opposes any particular religion or religion in general. But a class that includes as part of the instruction information or coursework that promotes or opposes a particular religion or religious beliefs may not be taught in facilities financed through tax exempt bond financing.

The trial court here, in denying the Authority’s request to validate its bond funding agreements with the three religious schools, did not consider the substance of the education at those schools. Accordingly, we remand this case to the Court of Appeal, which in turn is to remand the matter to the trial court for that evaluation

[Justice Chin dissented in a lengthy opinion, concluding that:] Applying [California Teachers Assn. v.] Riles and its analytical framework to this case, I conclude that the proposed bond financings at issue here are invalid under article XVI, section 5. . . . Unlike the majority, which wholly embraces Priest without either analysis or hesitation, I believe there is good reason to question that decision’s authority and persuasiveness. Priest must be read in light of our subsequent decision in Riles.

I emphasize that my conclusion does not reflect “hostility to religion’ any more than did our unanimous holding in Riles that lending secular textbooks to religious schools violates article XVI, section 5, even if the schools use the textbooks only for secular instruction. Rather, my conclusion reflects my fealty to the will of the people as expressed first and foremost in the language of the California Constitution, and my view of the judiciary’s limited role in applying that Constitution. “The question before us is not whether, as a matter of policy, the [proposed bond financings are] wise or beneficial, but instead whether [they are] constitutional. We [must] determine the validity of the [proposed bond financings] by applying the relevant legal principles embodied in the California Constitution, the preeminent expression of California law enacted by the people.” Applying those constitutional principles, I conclude that the proposed bond financings here at issue are invalid under article XVI, section 5. I therefore dissent.

WERDEGAR and MORENO, JJ., concur [in the dissent].

 

Mandel v. Hodges (1976), 54 Cal.App.3d 596

Mandel v.Hodges (1976), 54 Cal.App.3d 596, 127 Cal.Rptr. 244

[The Summary headnote to the opinion stated: In an action against the Director of the state Department of Public Health and others for declaratory and injunctive relief, the trial court entered judgment in favor of plaintiff state employee enjoining the Governor from proclaiming Good Friday, between the hours of noon and 3 p.m. to be a state holiday, enjoining the Controller from paying state employees for time taken off from work during the three-hour period, and awarding plaintiff $25,000 as attorney fees in the action, and costs, payable by the state. The court found that Good Friday is a wholly religious day and that the practices complained of violated U. S. Const., First Amend., and Cal. Const., art. I, § 4. The Court of Appeal affirmed.]

V. The State Constitutional Question

Although appellants have made no point of it, we cannot ignore the trial court’s separately stated conclusion that the annual Good Friday order was invalid upon the distinct ground that it violated article I, section 4, of the California Constitution. The history and structure of our national federalist system has both permitted and required the long-standing judicial construction of the California Constitution as a document whose “vitality” and “force” are independent of its federal counterpart.

The courts of California are the exclusive and final arbiters of the “rights” guaranteed by its Constitution, so long as the interpretive results they reach extend, to the citizens within their jurisdiction, equal or greater protection to those extended by the United States Supreme Court under textually parallel provisions of the federal Bill of Rights. For these reasons, it is apparent that the trial court’s invalidation of the Good Friday order under article I, section 4, of the California Constitution warrants examination independently of that to which we have subjected the order under the establishment clause of the First Amendment.

When the present judgment was entered, section 4 of article I provided in pertinent part: “The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be guaranteed in this State ….” As re-adopted by vote of the people on November 5, 1974 (in conjunction with its repeal as formerly worded), and as now pertinent, it provides: “Free exercise and enjoyment of religion without discrimination or preference are guaranteed. … The Legislature shall make no law respecting an establishment of religion. …”

However, the “[f]ree exercise and enjoyment” clause of section 4 is not new: except for the editorial — and nonsubstantive — changes made when it was re-adopted by the people in 1974, it has appeared in our Constitution since 1849. Section 28 (formerly § 22) of article I requires that the clause be read as both “mandatory and prohibitory.”13 By its express terms, what it mandates is the perpetual guaranty of the “free exercise and enjoyment” of religion; what it prohibits is “discrimination” against, “or preference” in favor of, one religion as opposed to another. The Governor’s Good Friday order has produced both of the results which the clause prohibits. Because it has appointed an exclusively Christian holy day as a paid “holiday” for all pertinent purposes affecting state offices and employees, it amounts to “discrimination” against all non-Christian religions and “preference” of those which are Christian. The trial court made these effects abundantly clear, in its findings and conclusions, by citing the discriminatory and preferential character of the order with reference to the Jewish religion. The court was therefore correct in concluding that the executive action in question further violates Article I, Section 4 of the California Constitution in that it constitutes discrimination and preference of one religion over others. The judgment is to be affirmed on this distinct basis.

 

Feminist Women’s Health Center v. Philibosian (1984), 157 Cal.App.3d 107

WOODS, Presiding Judge.

This appeal requires us to determine whether the district attorney may constitutionally proceed to bury 16,500 fetuses in a private cemetery that has donated the space, after he is aware that the cemetery has independently contracted with a religious organization to hold a religious burial service and mark the burial site with a memorial plaque. We conclude that he may not and, therefore, reverse the judgment.

Respondent district attorney was contacted by a container company in February of 1982 when approximately 16,500 fetuses and laboratory records were found in a repossessed container at the Woodland Hills home of Malvin Weisberg, the owner of a defunct pathology laboratory in Santa Monica. Weisberg had contracts with various physicians, clinics and hospitals which provided that after preparing pathology reports on the embryonic and fetal tissues sent to him, he would dispose of the tissue in accordance with state law. State law requires such tissue to be interred or incinerated. Weisberg stored the tissue properly but, apparently due to his financial difficulties, he did not dispose of it. Meanwhile, various public officials, politicians and organizations became involved in the disposition of the fetal tissue. [As you can imagine, this is an understatement.] The district attorney’s intention to transfer the tissue to Valhalla was reported in the Los Angeles Times. In late September of 1982, the Catholic League of Southern California and its president Paul Freese, intervenors and respondents herein, executed a contract with Valhalla permitting the league to hold a religious burial service as the tissue was “stored” and to place a memorial plaque at the site.2

Some rights guaranteed by the California Constitution are not guaranteed by the United States Constitution. (Cal. Const., art. I, § 24; People v. Brisendine (1975). With certain exceptions not here relevant, California courts alone determine the rights guaranteed by the California Constitution so long as those rights extend equal or greater protection to those guaranteed by the federal Constitution under totally similar provisions of the Bill of Rights. Therefore, we examine the constitutionality of the proposed action on independent state grounds. However, since only three California cases have considered our state’s establishment clause,4 we also consult principles of federal cases as they seem compelling guides to uncharted state grounds.

The case before us is factually distinguishable from all precedents. In our effort to apply existing principles to this unique situation, we will treat the classic methods for determining establishment clause violations as “touchstone[s] with which to identify instances where the objectives of the establishment clause have been compromised. The establishment clause was written to protect against ‘sponsorship, financial support, and active involvement of the sovereign in religious activity.’ In 1971, the United States Supreme Court enunciated three tests for determining whether a given law complied with the establishment clause. “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion [citation]; finally, the statute must not foster ‘an excessive government entanglement with religion.’ (Lemon v. Kurtzman (1971). The strict scrutiny test is applied to an establishment clause issue when government activity shows a preference for one religion over another. It is appropriate here because the Catholic League represents a particular religious view and the district attorney’s purported action would, in effect, sponsor and approve that view.

The United States Supreme Court has recently expressed its “unwillingness to be confined to any single test or criterion in this sensitive area. (Lynch v. Donnelly. We concur in the conclusion that no one test is definitive. However, in the case before us, applying either the Lemon or the Larson tests to the California establishment clause we conclude that the act of burying at Valhalla in the context described, violates religious guarantees of the California Constitution.

It is clear from the record that the Catholic League is a religious organization which regards a fetus as a human being and abortion as murder. While this specific belief may well cross sectarian lines, it is a belief not universally held. Consequently, any state action showing a preference for this belief will be strictly scrutinized and must be invalidated unless it is justified by a compelling governmental interest with which “it is closely fitted to further [that] interest.” The Catholic League has a constitutionally protected right to express their view that the fetuses are murdered humans and to publicly mourn them. They do not have the right, however, to have the state’s imprimatur on that expression.

Either the public act of disposing of the fetuses with no government display of religiosity, or the private expression of protected ideas would be proper. The impropriety comes from proceeding with the public act when the private group’s intent to use that public act to frame and support the private expression is widely known.

In conclusion we find the proposed burial at Valhalla would violate the establishment clause of the California Constitution.

The “no preference of religion clause” of the California Constitution provides additional grounds for a finding of unconstitutionality. Article I, section 4 of the California Constitution states: “Free exercise and enjoyment of religion without discrimination or preference are guaranteed…. The Legislature shall make no law respecting an establishment of religion.” The California Supreme Court has interpreted this section as being broader than the federal guarantee because preference is forbidden even when there is no discrimination. Whatever the district attorney’s motive, a preference will be objectively demonstrated if the fetuses are delivered to Valhalla in these circumstances. We find that the district attorney’s proposed action would express an unconstitutional preference for the views of the Catholic League.

The judgment is reversed. The cause is remanded to the trial court which is directed to enter a declaratory judgment consistent with this opinion.