Table Of ContentThe First Amendment and State
Bans on Teachers’ Religious Garb
Examining the twelve-decade legal conflict of government bans on
religious garb worn by teachers in U.S. public schools, this book provides
comprehensive documentation and analysis of the historical origins
and subsequent development of teachers’ religious garb in relation to
contemporary legal challenges within the United Nations and the European
Union.
By identifying and correcting factual errors in the literature about
historical bans on teachers’ garb, Walker demonstrates that there are
still substantial and unresolved legal questions to the constitutionality
of state garb statutes and reflects on how the contemporary conflicts are
historically rooted. Showcased through a wealth of laws and case studies,
this book is divided into eight clear and concise chapters and answers
questions such as these: What are anti-religious-garb laws? How have
the state and federal court decisions evolved? What are the constitutional
standards? What are the Establishment Clause and Free Exercise clause
arguments? How has this impacted current debates on teachers’ religious
garb? The text then concludes with an informative summary of the points
discussed throughout.
The First Amendment and State Bans on Teachers’ Religious Garb is
the ideal resource for researchers, academics, and postgraduate students
in the fields of education, religion, education policy, sociology of
education, and law, or those looking to explore an in-depth development
of the laws and debates surrounding teachers’ religious garb within the
last 125 years.
Rev. Dr. Nathan C. Walker is executive director of 1791 Delegates. He
has studied law and religion at Harvard and Columbia universities,
United States.
Routledge Research in Religion and Education
Series Editor
Michael D. Waggoner
University of Northern Iowa, USA
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Faith, Diversity, and Education
An Ethnography of a Conservative Christian School
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For a full list of titles in this series, please visit www.routledge.com
The First Amendment and
State Bans on Teachers’
Religious Garb
Analyzing the Historic Origins of
Contemporary Legal Challenges
in the United States
Nathan C. Walker
Author Biography
The Rev. Dr. Nathan C. Walker is executive director of 1791 Delegates,
constitutional and human rights specialists named after the year the
Bill of Rights was ratified. In this capacity, he serves as the manag-
ing director of The Foundation for Religious Literacy and founder of
the online learning community, ReligionAndPublicLife.com. Walker
currently teaches First Amendment law and human rights at Jeffer-
son University and Rutgers Honors College. He previously served as
the executive director for the Religious Freedom Center of the New-
seum Institute and as the senior minister and executive director of the
First Unitarian Church of Philadelphia. Walker currently serves on
the board of the Public Religion Research Institute, as an advisor to
the Muslim Public Affairs Council, and as the associate editor of the
peer-reviewed academic journal, Religion and Education.
Walker previously published four books including serving as co-edi-
tor with Michael D. Waggoner of The Oxford Handbook on Religion
and American Education (Oxford University Press 2018) and co-edi-
tor with Edwin J. Greenlee of Whose God Rules? Is the United States
a Secular Nation or a Theolegal Democracy? (Palgrave Macmillan
2011). He is the solo author of Cultivating Empathy: The Worth and
Dignity of Every Person—Without Exception (Skinner House Books
2016) and Exorcising Preaching: Crafting Intellectually Honest Wor-
ship (Chalice Press 2014).
Walker coauthored with Lyal S. Sunga the human rights policy
report, Promoting and Protecting the Universal Right to Freedom
of Religion or Belief through Law (International Development Law
Organization 2014/2016), which was presented at the Human Rights
Commission of the United Nations in Geneva, Switzerland. Walker is a
contributing author to Religion in American Education: A Legal Ency-
clopedia, edited by Charles J. Russo (Rowman & Littlefield 2019) and
The Oxford Encyclopedia of Politics and Religion, edited by Paul A.
Djupe, Mark J. Rozel, and Ted Jelen (Oxford University Press 2019).
Walker previously served as a resident fellow in law and religion at
Harvard University and received his Doctor of Education degree in law
and religion from Columbia University, where he received his Master of
Arts and Master of Education degrees. He received his Master of Divin-
ity degree from Union Theological Seminary, is an ordained Unitarian
Universalist minister in final fellowship (i.e., tenured), and serves as the
affiliated community minister for religion and public life at the Church
of the Larger Fellowship. His website is NateWalker.com.
First published 2020
by Routledge
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and by Routledge
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Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2020 Taylor & Francis
The right of Nathan C. Walker to be identified as author of this
work has been asserted by him in accordance with sections 77
and 78 of the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted
or reproduced or utilised in any form or by any electronic,
mechanical, or other means, now known or hereafter invented,
including photocopying and recording, or in any information
storage or retrieval system, without permission in writing from
the publishers.
Trademark notice: Product or corporate names may be
trademarks or registered trademarks, and are used only for
identification and explanation without intent to infringe.
Library of Congress Cataloging-in-Publication Data
A catalog record for this book has been requested
ISBN: 978-0-367-18830-6 (hbk)
ISBN: 978-0-429-19866-3 (ebk)
Typeset in Sabon
by Apex CoVantage, LLC
www.ReligiousGarb.com
Visit www.ReligiousGarb.com to download an annotated
bibliography and case summaries and to learn about current
legal developments on public schoolteachers’ religious garb in the
United States.
Contents
Author Biography iv
List of Tables xiii
Foreword xiv
Acknowledgments xvii
Glossaries xx
Preface xxv
I – The Problem and the Plan 1
What Are Anti-Religious-Garb Laws? 2
What Legally Grounds This Study? 4
Historical Context: A Perennial Legal Problem 9
Global Context: A Pervasive Legal Problem 12
Designing This Study 21
II – How Did We Get Here? 26
The Problem From Five Vantage Points 27
1. Contributions of Legal Experts 27
2. Contributions of Government Officials 28
3. Contributions of Educators and Education
Associations 28
4. Contributions of Religious and Civil Liberties
Groups 29
5. Contributions of Journalists 30
Evolution of State and Federal Court Decisions 31
Enumerating Causes of Action in Anti-Religious-
Garb Cases 32
Origins of Anti-Religious-Garb Laws and Cases:
1894 to 1910 39
Expansion of Statutes and Policies: 1910 to 1946 42
Conflicting Legal Developments in States: 1936
to 1956 47
viii Contents
Discussion of Developments in State Laws: 1894
to 1956 50
Contemporary Federal and State Decisions: 1986
to 2018 51
III – What Are the Constitutional Standards? 60
The No Religious Test for Office of 1787 60
The First Amendment to the U.S. Constitution of 1791 63
Incorporating First Amendment Rights to State Laws 65
Incorporating the Free Exercise Clause to the States 66
Incorporating the Establishment Clause to the States 67
Judicial Standards for Establishment Clause Cases 69
The Lemon Test 70
The Endorsement Test 72
The Neutrality Test 73
The Coercion Test 75
Classifying an Establishment Case 77
Summary of Establishment Tests 79
Judicial Standards for Free Exercise Cases 79
The Origins of the Strict Scrutiny Test 80
From Rational Basis to Strict Scrutiny 81
Extending Strict Scrutiny to Religion 82
The Sherbert Standard 83
The Yoder Exemption 85
The Neutral and General Applicability Standard 87
Smith’s Shadow: Developments in Federal and
State Statutes 90
The Constitutional Limitations of Restoring Religious
Freedom 90
Title VII of the Civil Rights Act of 1964 93
Increased Reliance on Religion Clauses in
state constitutions 94
The Origins of the Religious Animosity Principle 95
Applications of the Religious Animosity Principle 97
Synopsis 103
IV – How Do We Proceed? 106
Step 1. Synthesize Judicial Tests by Cause of Action 107
Step 2. Collect Primary and Secondary Source
Documents 108
Step 3. Articulate Narrow Legal Questions 110
Contents ix
Step 4. Set Factual Parameters 112
Limited Inquiry Into Pennsylvania’s Anti-Garb
Statute 113
Pennsylvania Religious-Garb-Wearing Teachers Have
Standing 114
Teachers Are Paid Like All Other Teachers 115
State-Employed, State-Examined, State-Certified
Teachers 116
State Schools, Not Federal Schools 117
Defining Teacher 118
Satisfactory Performance 120
Defining Religious Garb 120
No Evidence That Religious Garb, Alone,
Coerces Observers 120
No Evidence of Religious Instruction 121
Overview of Factual Parameters 121
Step 5. Conduct Legal Analysis 122
Summary of the Five-Step Action Plan 123
V – What Are the Establishment Clause Arguments? 125
Does the Statute Have a Secular Purpose? 127
The Statute Seeks to Create a Secular School Culture 127
The Statute Seeks to Avoid a “Religious Takeover” 129
The Statute Promotes Public Safety in Public Schools 131
Is the Primary Effect to Advance or Inhibit Religion? 133
No, It Does Not Have the Primary Effect of
Advancing Religion 134
No, the Statute Does Not Inhibit Religion 134
And yet, the Statute Advance Some Religions
Over Others 135
Yes, the Primary Effect Is to Inhibit Religion 135
Does the Statute Foster an Excessive Entanglement? 137
No, the Statute Prevents Entangling Public Funds
for Religion 138
The State Misconstrues the Meaning of
Entanglement 139
Does the Statute Endorse or Favor Religion? 140
No, the Statute Avoids the Perception of Endorsement
or Favoritism 140
The State Misconstrues the Meaning of Endorsement
and Favoritism 141
