Since the drafting of the Establishment Clause, a pronouncement contained within the First Amendment of the United States Constitution. The United States Supreme Court has debated how to interpret the meaning of, "Congress shall make no law respecting an establishment of religion." In Everson v. Board of Education (1947), the Court took its first action in an Establishment Clause case concerning funding for parochial school students that set a course that has been marked by confusion in the Court, inconsistent decision-making, and ultimately the creation of a policy of accommodation that provides opportunities for parochial school students to receive public financial assistance, including tuition reimbursement for their attendance at parochial schools. This study tracks the history of Establishment Clause jurisprudence with a research emphasis from Everson v. Board of Education (1947) to Zelman v. Simmons-Harris (2002) and illustrates how the philosophy of the United States Supreme Court has changed over time. Further context of the shift is provided with a discussion of the Lemon v. Kurtzman (1971) decision that served as an effective court-interpreted barrier to the use of public resources and funds for parochial schools for several years. Subsequent U.S. Supreme Court decisions have eroded gradually the barrier, coined the Wall of Separation between Church and State by Thomas Jefferson, culminating currently with Zelman v. Simmons-Harris (2002). The purpose of the study is to analyze the aforementioned shift in the context of public funding flowing for private church schools. It became clear through this study that the decision in Everson v. Board of Education was the decision which led to a history of conflict and confusion in the Court which set off a chain of events that ultimately led to public funding for parochial schools where allowable by State Constitution. The U.S. Supreme Court has determined that public funding for a sectarian school is allowable so long as the funding is neutral and at the personal discretion of the parents receiving it as opposed to directly supporting a sectarian school. / Ed. D.

Thesis advisor: Stephanie Greene / A Constitutional analysis of the American Recovery and Reinvestment Act of 2009 with respect to educational subsidies to religiously-affiliated universities; including a proposed framework for the adjudication of issues involving religion and the government. / Thesis (BS) — Boston College, 2009. / Submitted to: Boston College. Carroll School of Management. / Discipline: Carroll School of Management Honors Program. / Discipline: Business Law.

The issue of religion and its place in society has been a topic of controversy and debate since long before the creation of our constitutional republic. The relationship between religion and government has witnessed some of its most intense conflicts when the governmental entity in question involves public education. As our country moved into the 20th century, legal challenges in the field of public education began to emerge calling into question the constitutionality of various policies and practices at both the state and local levels. This dissertation examined the legal methodology that was initially developed and then subsequently modified as the judicial branch has interpreted how the Establishment Clause delineates the relationship between religion and public education. Because the United States Supreme Court has not overturned its decision in Lemon v. Kurtzman, the tri-partite test it established still remains the law of the land. Subsequent decisions by the Court leading up to their ruling in Mitchell v. Helms, however, have continued to modify the judiciary's approach toward the use of the Lemon test in Establishment Clause jurisprudence. This research analyzed the decisions of the various federal courts subsequent to the ruling issued in Mitchell to discern both the present position of the federal judiciary as it relates to the continued validity of Lemon and theorizes how the future course of any Establishment Clause legal challenges may ultimately be resolved by the federal courts. The analysis suggested that, while the Supreme Court has avoided Lemon's three-part test as the standard for evaluating Establishment Clause claims, the lower courts continue to place a strong emphasis on the importance of the test established in Lemon as the basis for how they render their decisions with issues that involve public education. This data indicated that Lemon continues to be an important tool for determining the validity of state programs and policies involving federal questions related to the Establishment Clause.

Network, organizational, and policy learning literatures indicate that when interest groups face failure they will seek out alternative ideas and strategies that will enhance their potential for future success. Research with regard to interest groups and legal change has found that interest groups, using arguments that were once accepted as the legal standard for Supreme Court decisions, were unwilling or unable to alter their arguments when the Court reversed its position on these legal standards. This research project examined the conflicting findings of these literatures. Using the Advocacy Coalition Framework as a guide, this project studied the separationist advocacy coalition in cases regarding state aid to elementary and secondary sectarian schools from 1971 to 2002. The legal briefs filed by members of the separationist advocacy coalition with the Court were examined using content analysis to track changes in their legal arguments. Elite interviews were then conducted to gain an understanding of the rationale for results found in the content analysis. The research expectation was that the separationist advocacy coalition would seek out and incorporate into their briefs new and innovative legal arguments to promote their policy goals. The research results demonstrated that prior to legal change interest groups did seek out and incorporate new legal arguments borrowed from other fora and sought to expand or reinterpret established legal arguments to better aid their policy goals. The changes that seemed to have the potential for adoption by the Court were quickly incorporated into the briefs of the other members of the coalition. Following legal change interest groups continued to analyze the decisions of the Court in order to seek out the best possible legal arguments to use in their briefs; however, the main focus of legal arguments examined and used by the coalition narrowed to those cited by the swing justice in the funding cases. Two innovative arguments were developed, but were either ignored or considered unsuitable, and were not used by the other members of the coalition. Counter to this project's research expectations new and innovative legal arguments were not adopted by the coalition. As the Court discontinued the use of various legal arguments the coalition quickly responded to these changes and dropped those obsolete legal arguments. Therefore, contrary to prior research, the interest groups and the coalition altered their arguments following legal change. Only those interest groups who no longer participated in coalition discussions reverted back to using pre-legal change arguments. Learning continued to occur in the coalition following legal change; however, the focus of analysis and the pool of arguments deemed worthy of use narrowed considerably. / Ph. D.

In deliberating on the application of the Establishment and Free Exercise Clauses of the United States Constitution’s First Amendment, the Supreme Court since 1947 has consistently failed to develop a principled distinction between religion and non-religion. This has hampered its ability to respond to developing challenges in Religion Clauses jurisprudence and to interpret those clauses in a systematic manner. Its recourse to facile characterizations of secularism and pluralism has exacerbated this problem. Attending to incoherence in the Court’s understanding of religion points to a definition of religion based in revelation and grounded not in the language of preference, identity or value, but in natural law and metaphysics. / text

Literature regarding the Supreme Court's holdings in Establishment Clause cases suggests the Court's jurisprudence has been inconsistent. Because the Court had both upheld and invalidated challenged governmental actions that relate to religious practices or institutions, a broad overview of the Court's holdings in Establishment Clause cases seems to support that notion. But where does the inconsistency lie: in the tests and criteria used by court members or in the holdings themselves? This thesis suggests that when comparing categories and subsets of the Court's holdings in Establishment Clause cases to one another, the jurisprudence is in fact consistent. This thesis demonstrates where the consistency can be identified and measured in the Court's jurisprudence by analyzing the holdings. The thesis employs three models, Strict-Separationism, Non-Preferentialism, and Accommodationism, to create standardized categories of Supreme Court's holdings, as independent as possible of the reasoning, criteria, or tests applied to the case by the Court members. I grouped the cases included in this study into one or more categories based on which model(s) the Court's actual holding matched. Then I compared cases within each category of holdings to one another across variables (such as actual holding and case types) to measure consistency between the cases. I conclude with an examination of the measured consistency and explanation of identified patterns in the Supreme Court's Establishment Clause holdings. The data indicated that the Court's actual holdings matched the same projected holdings consistently when compared to cases with similar variables. / Master of Arts

No description available.

Master of Arts / Department of Communication Studies, Theatre, and Dance / Charles J. Griffin / This rhetorical history study attempts to refocus the narrow debate on the concept of the “Separation of Church and State.” Most scholars and popular organizations primarily focus their determination of the original intent of the Establishment Clause on the views of James Madison, Thomas Jefferson, and Virginia. However, according to the United States Constitution it takes three-fourths of the states and two-thirds of Congress to ratify an amendment. As a result, most arguments on this topic center on an extremely small minority of evidence: one of fourteen states, and only one of eighty-one members of Congress to determine the Founders’ original intent. This study reverses this trend and consults evidence from all the states involved as well as the records of Congress. Since comparable documents are vital to understanding history, all the state constitutions, state bills of rights, and state proposed amendments to the Federal Constitution are consulted as evidence at the beginning of this study. Additionally, every reference of religion in the above documents are individually presented in order to alleviate concerns of potential evidence manipulation. Further, the debates in Congress and the multiple drafts of the Establishment Clause are evaluated in the process of determining the Founders’ original intent. Throughout the study, several useful tables have been constructed in order to facilitate the processing and evaluation of such a large base of evidence. The results of this study indicate a lack of evidence for the contemporary view that the Founders’ intent was to create a total separation between church and state. From the specific religious concerns voiced in the state ratification debates of the Constitution, what religious limits were written into state constitutions/bills of rights, and the amendments that states proposed concerning religion; it becomes evident that the Founders’ intention was only to prevent a particular Christian denomination from becoming the established "National American Church.”

This dissertation explores how argumentation theory can supplement models of responsible persuasion in rhetoric and writing studies. In particular, it demonstrates how reasoning as envisioned in the pragma-dialectical approach of argumentation can provide an alternative to exclusionary, unethical operations of reason. Despite longstanding work with models of argument from Aristotle to Stephen Toulmin, rhetoric and writing has paid little attention to the potential uses of dialectical argumentation theory. Such theory deserves greater consideration given its ability to meet the ethical demands voiced by rhetorical critiques of traditional ways of arguing. Critiques of reason demonstrate how the abstractions necessary for logical certainty exist in tension with the inherent ambiguity of human arguments. In attempting to strip away that ambiguity, some discussants unfairly exclude relevant details from others and may exclude entire populations who should be included in a fair deliberation. Goals of understanding and inclusion unite the variety of calls for new ways of arguing made in rhetoric and writing under titles of Rogerian, non-agonistic, listening, and invitational rhetorics. Nevertheless, as Chaïm Perelman and Lucie Olbrechts-Tyteca describe, even as our arguments involve irresolvable ambiguities, they must also function as stable and coherent viewpoints such that our interlocutors can hold us accountable to agreement or disagreement. In this way, we responsibly argue questions of ethics, politics and law. Though no final resolution of ambiguity is possible in such questions, we can reason together for a better understanding of each other's positions and craft pragmatic policies to deal with our disagreements. In order to explore the disciplinary questions about the relationship between rhetoric and argumentation, the dissertation examines a series of case studies drawn from judicial disputes over church-state separation in the United States. In examining problematic rhetoric of these disputes, the dissertation builds an understanding of responsible reason informed by dialectical argumentation and demonstrates its utility for both critical and pedagogical applications. / text

La présente étude tend à replacer le contexte de la construction fédérale américaine à la lumière d'un théisme politique émergent. L'exceptionnalisme procède à ce titre d'un paradoxe originel qui vient directement nourrir nos interrogations : la reconnaissance par la lettre constitutionnelle puis par les juges de la Cour Suprême d'un véritable « mur de séparation » entre le spirituel et le temporel, parfois exacerbé par les instruments du droit, mais qui doit être associé à la mise en place d'une «religion de la République» élaborée et fortement institutionnalisée. De là, l'auteur voit dans la notion d'exceptionnalisme religieux la mise en œuvre d'une rhétorique nouvelle qui entend offrir les instruments conceptuels permettant de revisiter la subtile immixtion de l' « esprit de religion » et de l' « esprit de liberté » chers à Alexis de Tocqueville. Cette perspective a dès lors pour dessein d'entrevoir une résolution de l'impossible oxymore que forme la république théocratico-laïque. Cette apparente dichotomie ne peut être entrevue à travers une lecture exclusivement doctrinale, elle emporte au contraire nombre d'incertitudes sur le plan jurisprudentiel. L'étude démontre à ce titre que les juges, en éludant la notion d'exceptionnalisme américain, ne peuvent construire un paradigme juridique apte à apprécier de manière satisfaisante les dispositions de droit positif en matière religieuse. Aussi, le constitutionnaliste œuvre à étudier les mécanismes juridiques traduisant un phénomène sociologique exceptionnaliste. Cette approche éclaire de telle manière la notion sans cesse revisitée de « laïcité américaine ». / This study tends to put the federal construction in context of an emerging political theism. Exceptionalism reveals an original paradox that directly feeds our questions: the recognition by the Constitution then by the judges of the Supreme Court of a “wall of separation” between spiritual and temporal powers, sometimes exacerbated by the instruments of the law, but which must be associated with the establishment of a “religion of the Republic” highly developed and institutionalized. From there, the author sees the notion of religious exceptionalism as the implementation of a new rhetoric that aims to provide the conceptual tools to revisit the subtle interference of the “spirit of religion” and the “spirit of liberty”, quoted from Alexis de Tocqueville. This perspective has therefore the ambition of establishing a possible resolution of the oxymoron that forms the theocratic-secular republic. This apparent dichotomy cannot be seen through a purely doctrinal reading, it brings on the contrary many uncertainties on the jurisprudential work. The study shows that the judges, eluding the notion of American exceptionalism, cannot build a legal paradigm able to appreciate adequately the provisions of substantive law in religious matters. To this end, the constitutionalist studies the legal mechanisms resulting from an exceptionalist sociological phenomenon. This approach sheds light on the concept so constantly revisited of “American secularism”.