1

Everson v. Board of Education of the Township of Ewing 1947

J BLACK

Everson v. Board of Education was the first case in which the Supreme Court considered the constitutionality of
government aid to parochial schools. In this case, the Board of Education of Ewing Township, under authority granted to
it by a New Jersey statute, authorized reimbursement to parents of money spent for bus transportation of their children,
including transportation of children to Catholic parochial schools.
Because of the difficulty in arranging its own transportation system, the school board at issue in Everson chose to reimburse
parents for money expended by them in having their children transported to both public and nonpublic (including religious)
schools using regular busses operated by the citys public transportation system.
Everson, a resident of Ewing Township, filed a suit against the board of education in which he contended that the
reimbursement of money to parents of parochial school students violated the Establishment Clause of the First
Amendment. New Jersey Supreme Court ruled infavor of Everson. New Jersey Court of Errors and Appeals reversed.

Note: there has been no attack on the statute on the ground that a part of its language excludes children attending private
schools operated for profit from enjoying State payment for their transportation, we need not consider this exclusionary
language

Eversons Arguments:
1. Statute and reso violate the due process clause of the Fourteenth Amendment as they authorized the State to
take by taxation the private property of some and bestow it upon others to be used for their own private
purposes. This is said to violate the due process clause because the children are sent to these church schools to
satisfy the personal desires of their parents, rather than the public's interest in the general education of all
children. ;
2. They violate Establishment Clause as they forced inhabitants to pay taxes to help support and maintain schools
which are dedicated to, and which regularly teach, the Catholic Faith.

ISSUE: WON the statute violates the Due Process Clause

HELD: NO.
This argument, if valid, would apply equally to prohibit state payment for the transportation of children to any non-public
school, whether operated by a church or any other nongovernment individual or group. The fact that a state law, passed
to satisfy a public need, coincides with the personal desires of the individuals most directly affected is certainly an
inadequate reason for us to say that a legislature has erroneously appraised the public need. Subsidies and loans to
individuals such as farmers and home owners, and to privately owned transportation systems, as well as many other
kinds of businesses, have been commonplace practices in our state and national history.

ISSUE: WON the statute violates the Establishment Clause

HELD: NO.
History of the Establishment Clause
Early settlers of US came travelled from Europe to escape the bondage of laws which compelled them to support
and attend government-favored churches
These practices of the old world were transplanted to, and began to thrive in, the soil of the new America:
churcjes/sects persecuting each other;
Virginia, where the established church had achieved a dominant influence in political affairs and where many
excesses attracted wide public attention, provided a great stimulus and able leadership for the movement. The
people reached the conviction that individual religious liberty could be achieved best under a government which
was stripped of all power to tax, to support, or otherwise to assist any or all religions, or to interfere with the
beliefs of any religious individual or group.
The movement toward this end reached its dramatic climax in Virginia in 1785-86 when the Virginia legislative
body was about to renew Virginia's tax levy for the support of the established church. Thomas Jefferson and
James Madison led the fight against this tax.
Virginia Bill for Religious Liberty originally written by Thomas Jefferson
Provisions of the First Amendment, in the drafting and adoption of which Madison and Jefferson played such
leading roles, had the same objective, and were intended to provide the same protection against governmental
intrusion on religious liberty as the Virginia statute.
 2

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." Reynolds v. United States, supra, at 164.

In protecting the citizens of New Jersey against state-established churches, we should not inadvertently prohibit
New Jersey from extending its general state law benefits to all its citizens without regard to their religious belief.
It cannot exclude individual members of any other faith, because of their faith, or lack of it, from receiving the
benefits of public welfare legislation.
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.
The State contributes no money to the schools. It does not support them. Its legislation, as applied, does no more
than provide a general program to help parents get their children, regardless of their religion, safely and
expeditiously to and from accredited schools thus becomes public welfare legislation.
Assisting students, as opposed to the schools they attended, did not constitute a violation of the Establishment
Clause under what came to be known as the Child Benefit Test.

Establishment Clause requires the state to be a neutral in its relations with groups of religious believers and
nonbelievers; 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.

QUOTE

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.

DISSENT
Here, parents pay money to send their children to parochial schools, and funds raised by taxation are used to
reimburse them. This not only helps the children to get to school and the parents to send them. It aids them in a
substantial way to get the very thing which they are sent to the particular school to secure, namely, religious
training and teaching.
It cannot be said that the cost of transportation is no part of the cost of education or of the religious instruction
given. That it is a substantial and a necessary element is shown most plainly by the continuing and increasing
demand for the state to assume it.
I have chosen to place my dissent upon the broad ground I think decisive, though, strictly speaking, the case
might be decided on narrower issues. The New Jersey statute might be held invalid on its face for the exclusion
of children who attend private, profit-making schools.

Preamble, Virginia Bill for Religious Liberty

Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by
civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy
author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either . . . ;
that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and
tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion is depriving him of the
comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern. . . .

And the statute itself enacted:

That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be
enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious
opinions or belief.
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Rosenberger v. Rector & Visitors of the University of Virginia

1995 J Kennedy

FACTS
The Student Activities Fund at the University of Virginia was built from mandatory student fees and was designed to
support a variety of extracurricular student activities. Any organization that wished to receive funds had to become a
Contracted Independent Organization (CIO) and had to include in all written materials to third parties that the group
was independent of the university and that the university was not responsible for the CIO. Fund guidelines governed and
controlled the disbursement of monies to CIO. The guidelines stated that the purpose of the fund was to support a range
of extracurricular activities and that the money had to be administered in a manner consistent with the education
purpose of the university as well as with state and federal law.

Ronald Rosenberger was a University of Virginia student who created Wide Awake Productions as a CIO. The group
published a magazine of religious and philosophical expression in order to facilitate discussion within an atmosphere of
tolerance of Christian viewpoints. In addition, the group published a newspaper, the Christian viewpoint of which was
clear from the first issue. The fact that Wide Awake Productions was a valid CIO is important, because if the group had
been a religious organization, it would not have qualified under fund guidelines. These guidelines stipulated that religious
organizations were those whose purposes were to practice devotion to acknowledge ultimate realities or deities.

When the student requested monies from the fund to subsidize the publication of Wide Awake, officials rejected his
application for aid on the ground that the magazine was a religious activity pursuant to its guidelines. The student then
filed suit on behalf of WAP, claiming that the denial of funding solely on the basis of the publications religious editorial
viewpoint violated the groups rights to freedom of the press and speech, the right to free exercise of religion, and equal
protection of the law.

A federal trial court, in granting the universitys motion for summary judgment, was of the opinion that that the denial of
support was not viewpoint discrimination and that officials concern about the groups religious activities was a sufficient
justification to deny the request for funds. On appeal, the Fourth Circuit affirmed that university officials did not violate
the groups rights, because they had a compelling interest in preserving strict separation of church and state.

ISSUE: WON the university program violates Free Speech

HELD: YES.

The Court ruled that the denial of funding for the publication imposed a financial burden on the groups speech
amounting to viewpoint discrimination. Acknowledging that the fund was a forum, the Court compared this case with a
similar situation in Lambs Chapel v. Center Moriches Union Free School District (1993), wherein it found that a school
board that made meeting space available to a large variety of groups could not exclude religious organizations based on
the religious nature of their speech, because this amounted to viewpoint discrimination. The Court reasoned in
Rosenberger that because funding was made available to groups for other journalistic pursuits, it had to do the same for
the publications of other organizations whose content and subject matter were religious in nature.

The Supreme Court next rejected the universitys claim that the guidelines and the accompanying restrictions were based
on content, not viewpoint. The Court responded that with regard to religion, while the distinction between content and
viewpoint is difficult to distinguish, religion served as a perspective and a standpoint for discussion. Consequently, the
Court was convinced that university officials discriminated against the group due to its views, not the content of its
publication. In discussing this distinction between content and viewpoint discrimination, the Court explained that content
discrimination could be permissible if it preserved the purposes of the limited open forum but that viewpoint
discrimination is impermissible when the speech is within the forums limitation.

The Supreme Court then reviewed the universitys claim that because Rosenberger dealt with funds and not facilities, its
officials should have been afforded substantial discretion as to the allocation of resources to accomplish the institutions
educational mission. The University of Virginia defense distinguished between its funds-denial action and the actions
tried in Lamb's Chapel v. Center Moriches Union Free School District noting that it involved use of public school buildings,
whilst the case of Rosenberger v. University of Virginia involved the use of school money. The Court held that when a public
school or university spends its own money to disseminate its own message, it may control the content and perspective, yet
"it does not follow . . . that viewpoint-based restrictions are proper when the University does not, itself, speak or subsidize
transmittal of a message it favors, but instead expends funds to encourage a diversity of viewpoints from private
speakers". UVA student organizations are not University agents subject to University control, and are not a University
responsibility. Because the University of Virginia will pay third-party printing costs of private speakers communicating
their own messages, it may not "silence the expression of selected viewpoints". The first danger to liberty lies in granting
 4

the State the power to examine publications to determine whether or not they are based on some ultimate idea and, if so,
for the State to classify them. The second, and corollary, danger is to speech from the chilling effect of individual thought
and expression. That danger is especially real in the University setting, where the State acts against a background and
tradition of thought and experiment that is at the center of our intellectual and philosophic tradition.

Content discrimination -- i.e., discrimination against speech because of its subject matter -- which may be permissible if
it preserves the limited forum's purposes
Viewpoint discrimination -- i.e., discrimination because of the speaker's specific motivating ideology, opinion, or
perspective -- which is presumed impermissible when directed against speech otherwise within the forum's limitations

Not to finance Wide Awake, according to petitioners, violates the principle of neutrality by sending a message of hostility
toward religion. To finance Wide Awake, argues the University, violates the prohibition on direct state funding of religious
activities.

ISSUE: WON the university program violates Establishment Clause

HELD: NO.
Government partiality towards organized religion is a necessary component of an Establishment Clause violation; in this
sense, the government acts neutrally when it follows neutral criteria and policies in extending benefits to recipients
representing a wide range of political and religious ideologies. There is no suggestion that the University created its
program to advance religion or aid a religious cause. A public university does not violate the Establishment Clause when it
grants access to its facilities on a religion-neutral basis to a wide spectrum of student groups, even if some of those groups
would use the facilities for devotional exercises. The Establishment Clause does not require government to refuse free
speech rights to religious organizations participating in neutral-design government programs.

The UVA's student activities funding design is neutral, toward religion, because the purpose of the fund was to
open a forum for speech and to support valid student groups.
Furthermore, the fact that the UVA is not the speaker under this program supports the conclusion that the UVA
student activities funding design does not violate the Establishment Clause, because it is unlikely that the
University will be perceived as the speaker.
Deciding that the mandatory fee to support the fund was not a tax, the Court concluded that because the
program furthered its neutrality by ensuring that each CIO was considered a private group and was not part of
the university, officials would not have violated the Establishment Clause had they made the funds available. No
public funds flow directly to WAP's coffers.
The student publication is not a religious institution, at least in the usual sense of that term as used in our case
law, and it is not a religious organization as used in the University's own regulations.

OConnors concurrence
She identified four considerations showing no Establishment Clause violation arising from the UVA's potential
endorsement of the religious message Wide Awake magazine might communicate.
1. Wide Awake is "strictly independent" of the UVA. Although this organization has members who are University of
Virginia students (faculty) (employees), the organization is independent of the corporation which is the
University and which is not responsible for the organization's contracts, acts or omissions;
2. The student activities funds disbursed to it may only be used for permitted third-party reimbursements. Funds
are paid directly to the third-party vendor and do not pass through the organization's coffers;
3. "Assistance is provided to the religious publication in a context that makes improbable any perception of
government endorsement of the religious message", because it also funds a "wide array of nonreligious, anti-
religious and competing religious viewpoints" via the student activities fund. Besides the general news
publications, for example, the University has provided support to The Yellow Journal, a humor magazine that has
targeted Christianity as a subject of satire, and Al-Salam, a publication to "promote a better understanding of
Islam to the University Community";
4. Students contribute the money, and students are directly involved in disbursing it under UVA administrative
supervision.

In Witters v. Washington Dept. of Services for Blind (1986), we unanimously held that the State may, through a generally
applicable financial aid program, pay a blind student's tuition at a sectarian theological institution. The Court so held,
however, only after emphasizing that "vocational assistance provided under the Washington program is paid directly to
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the student, who transmits it to the educational institution of his or her choice." Id. at 487. The benefit to religion under
the program, therefore, is akin to a public servant contributing her government paycheck to the church.

Thomass concurrence
Thomas argued in the process that "Contrary to the dissent's suggestion, Madison's objection to the assessment bill did
not rest on the premise that religious entities may never participate on equal terms in neutral government programs. Nor
did Madison embrace the argument that forms the linchpin of the dissent: that monetary subsidies are constitutionally
different from other neutral benefits programs. Instead, Madison's comments are more consistent with the neutrality
principle that the dissent inexplicably discards. According to Madison, the Virginia assessment was flawed because it
'violate[d] that equality which ought to be the basis of every law.'"
Madison's views "as reflected by actions on the floor of the House in 1789, [indicate] that he saw the [First]
Amendment as designed to prohibit the establishment of a national religion, and perhaps to prevent
discrimination among sects," but not "as requiring neutrality on the part of government between religion and
irreligion";
Stripped of its flawed historical premise, the dissent's argument is reduced to the claim that our Establishment
Clause jurisprudence permits neutrality in the context of access to government facilities but requires
discrimination in access to government funds;
Few concepts are more deeply embedded in the fabric of our national life, beginning with pre-Revolutionary
colonial times, than for the government to exercise at the very least this kind of benevolent neutrality toward
churches and religious exercise. . . .;
Consistent application of the dissent's "no-aid" principle would require that "a church could not be protected by
the police and fire departments, or have its public sidewalk kept in repair.'" Zobrest v. Catalina Foothills School
Dist. (1993).
The Clause does not compel the exclusion of religious groups from government benefits programs that are generally
available to a broad class of participants.

Souter's dissent
For Souter, the University of Virginia directly subsidized religion by paying third-party printing costs for Wide
Awake magazine. Such a subsidy had been understood to violate the Establishment Clause since before it was added to the
Constitution in 1791. "Nearly every colony had exacted a tax for church support", and the "practice was so commonplace
as to shock the freedom-loving colonials into a feeling of abhorrence". James Madison "captured the colonists' conviction
that individual religious liberty could be achieved best under a government stripped of all power to tax, to support, or
otherwise to assist any or all religions, or to interfere with the beliefs of any religious individual or group".
Accordingly, the UVA student activities fee was a patent violation of the principle of no direct government funding of
organized religion, because the University of Virginia "exercises the power of the State to compel a student to" subsidize
religion.
 6

Sherbert v Verner 1963

J Brennan

Sherbert v. Verner, held that the Free Exercise Clause of the First Amendment required that the government demonstrate
both a compelling interest and that the law in question be narrowly tailored, before denying unemployment
compensation to someone who was fired because her job requirements substantially conflicted with her religion.
The case established the Sherbert Test, requiring demonstration of such a compelling interest and narrow tailoring in all
Free Exercise cases where a religious person was substantially burdened by a law. These conditions are the key
components of what is usually called strict scrutiny.

FACTS
Mrs. Sherbert was discharged from her job due to her Seventh-Day Adventist practice of sabbitarianism that required her
to not work on Saturdays. She could not find other employment that did not require Saturday work, and she filed for
compensation benefits under the South Carolina Unemployment Compensation Act but was denied by the Employment
Security Commission because she failed to accept suitable work without "good cause." The Commission's finding was
sustained by the Court of Common Pleas for Spartanburg County. That court's judgment was, in turn, affirmed by the
South Carolina Supreme Court, which rejected appellant's contention that, as applied to her, the disqualifying provisions
of the South Carolina statute abridged her right to the free exercise of her religion secured under the Free Exercise Clause
of the First Amendment through the Fourteenth Amendment.

ISSUE
WON the Disqualification for unemployment compensation benefits, solely because of her refusal to accept employment
in which she would have to work on Saturday contrary to her religious belief violates the Free Exercise clause

HELD: Yes.
In ruling, the Court created the Sherbert Test which asked
1. whether the state policy/statute at issue imposed a substantial burden on the claimant's right to free exercise of
religion and,
2. if there is a burden, whether the infringement is justified by a compelling state interest and is narrowly tailored
or the least restrictive means to achieve this interest. "[o]nly the gravest abuses, endangering paramount
interests, give occasion for permissible limitation."

I. In this instance she faced pressure to forgo her religious practice in exchange for receiving unemployment
benefits. [i]f the purpose or effect of a law is to impede the observance of one or all religions or is to
discriminate invidiously between religions, that law is constitutionally invalid even though the burden may
be characterized as being only indirect.
Braunfeld v. Brown. Here, not only is it apparent that appellant's declared ineligibility for benefits derives
solely from the practice of her religion, but the pressure upon her to forego that practice is unmistakable.
The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the
one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.

II. The Court determined that the state's claimed interestto prevent "spurious" unemployment claims under
the guise of religious freedomwas a distant possibility for which there were alternative remedies, rather
than necessitating the denial of benefits.

We are not fostering the "establishment" of the Seventh-day Adventist religion in South Carolina nothing more
than the governmental obligation of neutrality in the face of religious differences.
A state may not apply the eligibility provisions so as to constrain a worker to abandon his religious convictions
respecting the day of rest.
No State may exclude members of any other faith, because of their faith, or lack of it, from receiving the benefits
of public welfare legislation.

Religious convictions, strongly held, are so impelling as to constitute good cause for refusal. Since availability refers to
suitable work, religious observers were not unavailable because they excluded Sabbath work.

The judgment of the South Carolina Supreme Court is reversed, and the case is remanded for further proceedings .
 7

Concurrence
J Douglas
State effectively asks the court to hold that a Sabbatarian must conform with the scruples of the majority in order to
obtain unemployment benefits.

Concurrence
Stewart
The Establishment Clause, as construed by this Court, not only permits but affirmatively requires South Carolina
equally to deny the appellant's claim for unemployment compensation when her refusal to work on Saturdays is
based upon her religious creed.
The Court holds that the State must prefer a religious over a secular ground for being unavailable for work
e.g. deny unemployment benefits to a mother unavailable for work on Saturdays because she was unable to get a
babysitter.
The Court's approach to the Establishment Clause has, on occasion, and specifically in Engel,
Schempp and Murray, been not only insensitive but positively wooden, and that the Court has accorded to the
Establishment Clause a meaning which neither the words, the history, nor the intention of the authors of that
specific constitutional provision even remotely suggests.
i.e. Schempp: The Establishment Clause forbids "every form of public aid or support for religion.
The guarantee of religious liberty embodied in the Free Exercise Clause affirmatively requires government to
create an atmosphere of hospitality and accommodation to individual belief or disbelief. In short, I think our
Constitution commands the positive protection by government of religious freedom -- not only for a minority,
however small -- not only for the majority, however large -- but for each of us.
It is the Court's duty to face up to the dilemma posed by the conflict between the Free Exercise Clause of the
Constitution and the Establishment Clause as interpreted by the Court.

Dissent
Harlan
The Commission denied Sherbert unemployment based on the same reason they might any secular claimant,
that she was not "available for work" because of a private decision she had made.
The State must single out for financial assistance those whose behavior is religiously motivated, even though it
denies such assistance to others whose identical behavior is not religiously motivated.

The door of the Free Exercise Clause

Stands tightly closed against any governmental regulation of religious beliefs as such, Cantwell v. Connecticut.
Government may neither compel affirmation of a repugnant belief, Torcaso v. Watkins, ;
nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the
authorities, Fowler v. Rhode Island;
nor employ the taxing power to inhibit the dissemination of particular religious views, Murdock v.
Pennsylvania; Follett v. McCormick; cf. Grosjean v. American Press Co.
On the other hand, the Court has rejected challenges under the Free Exercise Clause to governmental regulation of certain
overt acts prompted by religious beliefs or principles,
"Even when the action is in accord with one's religious convictions, [it] is not totally free from legislative
restrictions." Braunfeld v. Brown.
The conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or
order. Reynolds v. United States, Jacobson v. Massachusetts, Prince v. Massachusetts, Cleveland v. United States
 8

RE: REQUEST OF MUSLIM EMPLOYEES IN THE DIFFERENT COURTS IN ILIGAN CITY

FACTS
In a letter, Muslim employees in the different courts in the said city request that they be allowed to enjoy the following
privileges:
1. to hold office hours from 7:30 a.m. to 3:30 p.m. without lunch break or coffee breaks during the month of
Ramadan;
2. to be excused from work from 10:00 a.m. to 2:00 p.m. every Friday (Muslim Prayer Day) during the entire
calendar year.

Judge Salazar forwarded the said letter-request to the Office of the Court Administrator (OCA). Judge Salazar expressed
his conformity with the first request but expressed misgivings on the second.

Muslim EEs Arguments:

Muslim employees invoke PD 291 as amended. The purpose of P.D. No. 291 was to reinforce national unity by recognizing
Muslim holidays and making them part of our national holidays. Muslims employees in the government are excused from
reporting to office during these holidays in order that they may be able to properly observe them. It also provides that
During the fasting season on the month of Ramadan, all Muslim employees in the govt shall observe office hours from
seven-thirty in the morning (7:30 a.m.) to three-thirty in the afternoon (3:30 p.m.) without lunch break or coffee breaks,
and that there shall be no diminution of salary or wages, provided, that the employee who is not fasting is not entitled to
the benefit of this provision.
Pursuant thereto, the Civil Service Commission (CSC) promulgated Resolution No. 81-1277 dated November 13, 1981
which states in part:
During Ramadan the Fasting month (30 days) of the Muslims, the Civil Service official time of 8-12 and 1-5 is
hereby modified to 7:30 A.M. - 3:30 P.M. without noon break and the difference of 2 hours is not counted as
undertime;
During Friday, the Muslim pray day, Muslims are excused from work from 10 am - 2 pm. The term Friday in the
refers to all Fridays of the calendar year. CSC prescribes the adoption of a flexible working schedule to
accommodate the Muslims Friday Prayer Day.

Court Administrator recommends that the Muslim employees in the Judiciary be allowed to hold flexible office hours from
7:30 a.m. to 3:30 p.m. without break during the month of Ramadan. Further, that they be excused from work from 10:00
a.m. to 2:00 p.m. every Friday to allow them to attend the Muslim Prayer Day. However, to compensate for the lost hours,
they should be required to observe flexible working schedule which should start from 7:00 a.m. to 10:00 a.m. and from
2:00 p.m. to 7:00 p.m. every Friday. In that way, the working hours mandated by the civil service rules is complied with.

ISSUE: WON the second condition violates the Establishment Clause

HELD: NO.
The Court recognizes that the observance of Ramadan and the Friday Muslim Prayer Day is integral to the Islamic faith.
The first condition is well-taken. The same has statutory basis in P.D. No. 291. The Court, however, is constrained to deny
for lack of statutory basis the request of the Muslim employees to be excused from work from 10:00 a.m. to 2:00 p.m.
every Friday to allow them to attend the Muslim Prayer Day. The CSC exceeded its authority insofar as the second
condition is concerned.

The Court is not unmindful that the subject requests are grounded on Section 5, Article III of the Constitution:

No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof.
The exercise and enjoyment of religious profession and worship, without discrimination or preference,
shall forever be allowed. No religious test shall be required for the exercise of civil and political rights.

This provision contains two aspects: (1) the non-establishment clause; and (2) the free exercise clause. The
subject requests are based on the free exercise clause and in interpreting this clause the Court has consistently
adhered to the doctrine that:

The right to religious profession and worship has a two-fold aspect:

1. freedom to believe; and
2. freedom to act on ones beliefs.
The first is absolute as long as the belief is confined within the realm of thought.
The second is subject to regulation where the belief is translated into external acts that affect the public welfare.
Justice Frankfurter:
 9

The constitutional provision on religious freedom terminated disabilities, it did not create new privileges.
It gave religious liberty, not civil immunity.
Its essence is freedom from conformity to religious dogma, not freedom from conformity to law because of religious
dogma.

The need of the State to prescribe government office hours as well as to enforce them uniformly to all civil
servants, Christians and Muslims alike, cannot be disregarded. It is the interest of the general public to be
assured of continuous government service during office hours every Monday through Friday. Section 5,[8] Rule
XVII of the Omnibus Rules Implementing Book V of E.O. No. 292 enjoins all civil servants, of whatever religious
denomination, to render public service of no less than eight hours a day or forty (40) hours a week.
To allow the Muslim employees in the Judiciary to be excused from work from 10:00 a.m. to 2:00 p.m. every
Friday (Muslim Prayer Day) during the entire calendar year would mean a diminution of the prescribed
government working hours. For then, they would be rendering service twelve (12) hours less than that required
by the civil service rules for each month.
Further, this would encourage other religious denominations to request for similar treatment.
The exercise of religious freedom does not exempt anyone from compliance with reasonable requirements of
the law, including civil service laws.
Remedy of the Muslim employees: legislative

Wisconsin v. Yoder 1972

 10

Wisconsin v. Yoder is the case in which the United States Supreme Court found that Amish children could not be placed
under compulsory education past 8th grade. The parents' fundamental right to freedom of religion outweighed the state's
interest in educating its children. The case is often cited as a basis for parents' right to educate their children outside of
traditional private or public schools.

FACTS

Three Amish students from three different families stopped attending New Glarus High School in the New Glarus,
Wisconsin school district at the end of the eighth grade, all because of their parents' religious beliefs. This is in violation of
Wisconsin's compulsory school attendance law (which requires a child's school attendance until age 16). Amish provide
continuing informal vocational education to their children designed to prepare them for life in the rural Amish
community. They were convicted in the Green County Court as requirement of high school attendance until age 16 was a
"reasonable and constitutional" exercise of governmental power. The Wisconsin Supreme Court found in Yoder's favor.
Wisconsin appealed that ruling in the U.S. Supreme Court.

Yoders Arguments
Respondents sincerely believed that high school attendance was contrary to the Amish religion and way of life, and that
they would endanger their own salvation and that of their children by complying with the law. they view secondary
school education as an impermissible exposure of their children to a "worldly" influence in conflict with their beliefs. In
support of their position, respondents presented as expert witnesses scholars on religion and education whose testimony
is uncontradicted. They expressed their opinions on the relationship of the Amish belief concerning school attendance to
the more general tenets of their religion, and described the impact that compulsory high school attendance could have on
the continued survival of Amish communities as they exist in the United States today. The evidence also showed that the
Amish have an excellent record as law-abiding and generally self-sufficient members of society.

States Arguments
The State claims that it is empowered, as parens patriae, to extend the benefit of secondary education to children
regardless of the wishes of their parents. The State's interest in universal compulsory formal secondary
education to age 16 is so great.
Under the Religion Clauses, religious beliefs are absolutely free from the State's control, but "actions," even
though religiously grounded, are outside the protection of the First Amendment.
The State attacks respondents' position as one fostering "ignorance" from which the child must be protected by
the State.

ISSUE: WON the Compulsory Attendance Law violate the Free Exercise clause

HELD: YES.
However strong the State's interest in universal compulsory education, it is by no means absolute to the exclusion or
subordination of all other interests, such as those specifically protected by the Free Exercise Clause of the First
Amendment and the traditional interest of parents with respect to the religious upbringing of their children.

Providing public schools ranks at the very apex of the function of a State. Yet even this paramount responsibility was,
in Pierce, made to yield to the right of parents to provide an equivalent education in a privately operated system.

in order for Wisconsin to compel school attendance beyond the eighth grade against a claim that such attendance
interferes with the practice of a legitimate religious belief, it must appear either that
1. the State does not deny the free exercise of religious belief by its requirement; or that
2. there is a state interest of sufficient magnitude to override the interest claiming protection under the Free
Exercise Clause.

Respondents have amply supported their claim that enforcement of the compulsory formal education
requirement after the eighth grade would gravely endanger if not destroy the free exercise of their religious
beliefs. They must either abandon belief and be assimilated into society at large or be forced to migrate to some
other and more tolerant region. The traditional way of life of the Amish is not merely a matter of personal
preference, but one of deep religious conviction, shared by an organized group, and intimately related to daily
living.

To have the protection of the Religion Clauses, the claims must be rooted in religious belief.
 11

Long before there was general acknowledgment of the need for universal formal education, the Religion Clauses had
specifically and firmly fixed the right to free exercise of religious beliefs, and buttressing this fundamental right was an
equally firm, even if less explicit, prohibition against the establishment of any religion by government.

The State's claim that it is empowered, as parens patriae, cannot be sustained against a free exercise claim of the
nature revealed by this record, for the Amish have introduced convincing evidence that accommodating their
religious objections by forgoing one or two additional years of compulsory education will not impair the physical
or mental health of the child, or result in an inability to be self-supporting or to discharge the duties and
responsibilities of citizenship, or in any other way materially detract from the welfare of society. It is neither fair
nor correct to suggest that the Amish are opposed to education beyond the eighth grade level. What this record
shows is that they are opposed to conventional formal education of the type provided by a certified high school
because it comes at the child's crucial adolescent period of religious development, practical
agricultural/vocational training

If the State is empowered, as parens patriae, to "save" a child from himself or his Amish parents by requiring an additional
two years of compulsory formal high school education, the State will, in large measure, influence, if not determine, the
religious future of the child.

Religiously grounded conduct is NOT always outside the protection of the Free Exercise Clause. It is true that
activities of individuals, even when religiously based, are often subject to regulation by the States in the exercise
of their undoubted power to promote the health, safety, and general welfare. In this context, belief and action
cannot be neatly confined in logic-tight compartments.

A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for
governmental neutrality if it unduly burdens the free exercise of religion.

The dissent argues that a child who expresses a desire to attend public high school in conflict with the wishes of
his parents should not be prevented from doing so. There is no reason for the Court to consider that point, since
it is not an issue in the case.

Concurrence
White
the State's interest in requiring two more years of compulsory education in the ninth and tenth grades
outweighs the importance of the concededly sincere Amish religious practice to the survival of that sect.
Since the Amish children are permitted to acquire the basic tools of literacy to survive in modern society by
attending grades one through eight, and since the deviation from the State's compulsory education law is
relatively slight, I conclude that respondents' claim must prevail, largely because
The State is not concerned with the maintenance of an educational system as an end in itself; it is rather
attempting to nurture and develop the human potential of its children
Dissent
Douglas

These children are "persons" within the meaning of the Bill of Rights. We have so held over and over again. It is
the future of the student, not the future of the parents, that is imperiled by today's decision. If a parent keeps his
child out of school beyond the grade school, then the child will be forever barred from entry into the new and
amazing world of diversity that we have today. The child may decide that that is the preferred course, or he may
rebel. The child, therefore, should be given an opportunity to be heard before the State gives the exemption
which we honor today.
I think the emphasis of the Court on the "law and order" record of this Amish group of people is quite irrelevant.
A religion is a religion irrespective of what the misdemeanor or felony records of its members might be.