A temporary moratorium on development imposed during the development of a comprehensive plan did not constitute a per se taking. Compensation is required when a regulation denies an owner all economically beneficial use of land. An interest in property consists of the metes and bounds of the property and the term of years that describes the owner’s interest. Both dimensions must be considered in determining whether a taking occurred. A fee simple interest cannot be rendered valueless by a temporary prohibition on use. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 152 L. Ed. 2d 517 (2002). Regulatory takings jurisprudence aims to identify regulatory actions that are functionally equivalent to classic takings in which government directly appropriates private property or ousts the owner from his or her domain. Each applicable test focuses upon the severity of the burden that government imposes upon private property rights. In this case lower courts struck down a rent control statute applicable to company owned gas stations as an unconstitutional regulatory taking based solely upon a finding that it did not substantially advance the state’s asserted interest in controlling retail gasoline prices. The “substantially advances” test prescribes an inquiry in the nature of a due process, not a takings, test that has no proper place in takings jurisprudence. Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 161 L. Ed. 2d 876, 125 S. Ct. 2074 (2005). The State may transfer property from one private party to another if there is a public purpose for the taking. Without exception, cases have defined the concept of public purpose broadly, reflecting a longstanding policy of deference to legislative judgments in this field. It would be incongruous to hold that a city’s interest in the economic benefits to be derived from the development of an area has less of a public character than any other public interests. Clearly, there is no basis for exempting economic development from the traditionally broad understanding of public purpose. Kelo v. City of New London, 545 U.S. 469, 125 S. Ct. 2655, 162 L. Ed. 2d 439 (2005). Government induced flooding, temporary in duration, gains no automatic exemption from takings clause inspection. When regulation or temporary physical invasion by government interferes with private property time is a factor in determining the existence of a compensable taking. Arkansas Game and Fish Commission v. United States, 568 U.S. 23, 133 S. Ct. 511, 184 L. Ed. 2d 417 (2012). Precedents enable permitting authorities to insist that applicants bear the full costs of their development proposals while still forbidding the government from engaging in “out-and-out . . . extortion that would thwart the 5th amendment right to just compensation.” The government may choose whether and how a permit applicant is required to mitigate the impacts of a proposed development, but it may not leverage its legitimate interest in mitigation to pursue governmental ends that lack an essential nexus and rough proportionality to those impacts. Extortionate demands for property in the land use permitting context run afoul of the takings clause not because they take property but because they impermissibly burden the right not to have property taken without just compensation. Koontz v. St. Johns River Water Management District, 570 U.S. 595, 133 S. Ct. 2586, 186 L. Ed. 2d 697 (2013). The question of the proper parcel in regulatory takings cases cannot be solved by any simple test. Courts must define the parcel in a manner that reflects reasonable expectations about the property, considering a number of factors, including the treatment of the land under state and local law; the physical characteristics of the land; and the prospective value of the regulated land. This endeavor should determine whether reasonable expectations about property ownership would lead a landowner to anticipate that his or her holdings would be treated as one parcel, or, instead, as separate tracts. The inquiry is objective, and the reasonable expectations at issue derive from background customs and the whole of our legal tradition. Murr v. Wisconsin, 582 U.S. 383, 137 S. Ct. 1933, 198 L. Ed. 2d 497 (2017). Under a California regulation that grants labor organizations a “right to take access” to an agricultural employer’s property in order to solicit support for unionization, agricultural employers must allow union organizers onto their property for up to three hours per day, 120 days per year. The access regulation appropriates a right to invade the growers’ property and therefore constitutes a per se physical taking under the 5th and 14th amendments to the U.S. Constitution. Appropriations of a right to invade are per se physical takings, not use restrictions subject to the flexible test developed in Penn Central Transportation Co., 438 U.S. 104 (1978). Cedar Point Nursery v. Hassid, 594 U.S. ___, 141 S. Ct. 2063, 210 L. Ed. 2d 369 (2021). When there is money remaining after a property is seized and sold by a county to satisfy past due property taxes, along with the costs of collecting them, that remaining value is “property” under the takings clause that is protected from uncompensated appropriation by the state. In this case, a Minnesota law that purported to extinguish that property interest by providing that an owner forfeits the owner’s interest in property by falling behind on property taxes effected a classic taking in which the government directly appropriated private property for its own use. Tyler v. Hennepin County, 598 U.S. ___, 143 S. Ct. 1369, 215 L. Ed. 2d 564 (2023). The riparian rights of waterfront property owners are subordinate to the government’s authority to regulate navigable waterways under the public-trust doctrine. In this case, by removing a dam and thereby lowering the river’s water level, the government did not take the owner’s riparian right to the previous water level. The owner had no property right to have the river remain at the previous level. Kreuziger v. Milwaukee County, 60 F.4th 391 (2023). The general rule is that a government does not commit a taking when it exercises its contractual rights rather than its governmental prerogative. City of La Crosse v. Fairway Outdoor Funding, LLC, 575 F. Supp. 3d 1087 (2021). The Original Understanding of “Property” in the Constitution. Larkin. 100 MLR 1 (2016).
Murr and Wisconsin: The Badger State’s Take on Regulatory Takings. Wenthold. 102 MLR 261 (2018).
Compensation for lost rents. 1971 WLR 657.
Blurring the Denominator: Murr v. Wisconsin and the Increasing Complexity of Takings Analysis. Gresik. 2018 WLR 1231.
I,14Feudal tenures; leases; alienation. Section 14. All lands within the state are declared to be allodial, and feudal tenures are prohibited. Leases and grants of agricultural land for a longer term than fifteen years in which rent or service of any kind shall be reserved, and all fines and like restraints upon alienation reserved in any grant of land, hereafter made, are declared to be void. I,15Equal property rights for aliens and citizens. Section 15. No distinction shall ever be made by law between resident aliens and citizens, in reference to the possession, enjoyment or descent of property. I,16Imprisonment for debt. Section 16. No person shall be imprisoned for debt arising out of or founded on a contract, expressed or implied. Section 943.20 (1) (e), which criminalizes the failure to return rented personal property, does not unconstitutionally imprison one for debt. State v. Roth, 115 Wis. 2d 163, 339 N.W.2d 807 (Ct. App. 1983). This section only prohibits imprisonment for debt arising out of or founded upon a contract. A court imposed support order is not a debt on a contract and prosecution and incarceration for criminal nonsupport does not violate this section. State v. Lenz, 230 Wis. 2d 529, 602 N.W.2d 172 (Ct. App. 1999), 99-0860. I,17Exemption of property of debtors. Section 17. The privilege of the debtor to enjoy the necessary comforts of life shall be recognized by wholesome laws, exempting a reasonable amount of property from seizure or sale for the payment of any debt or liability hereafter contracted. I,18Freedom of worship; liberty of conscience; state religion; public funds. Section 18. [As amended Nov. 1982] The right of every person to worship Almighty God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend, erect or support any place of worship, or to maintain any ministry, without consent; nor shall any control of, or interference with, the rights of conscience be permitted, or any preference be given by law to any religious establishments or modes of worship; nor shall any money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries. [1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982] A statute authorizing a contract requiring the state to pay an amount to a Catholic university for the education of dental students violated the establishment clause by permitting the use of funds paid by the state to be used in support of the operating costs of the university generally and violated the free exercise clause by requiring regulations as to management and hiring by the university that were not restricted to the dental school. Warren v. Nusbaum, 55 Wis. 2d 316, 198 N.W.2d 650. It is outside the province of a civil court to review the merits of a determination of a duly authorized ecclesiastical tribunal that has adhered to prescribed canonical procedure and that results in terminating a clergyman’s relationship with his church. Olston v. Hallock, 55 Wis. 2d 687, 201 N.W.2d 35. This section is not violated by s. 118.155, which accommodates rather than restricts the right of students to religious instruction, does not compel any student to participate in religious training, and does not involve the use or expenditure of public funds, especially when the electorate approved an amendment to art. X, sec. 3, specifically authorizing enactment of a released time statute. State ex rel. Holt v. Thompson, 66 Wis. 2d 659, 225 N.W.2d 678. For purposes of s. 121.51 (4) [now s. 121.51 (1)], and in the absence of fraud or collusion, when a religious school demonstrates by its corporate charter and bylaws that it is independent of, and unaffiliated with, a religious denomination, further inquiry by the state would violate this section. Holy Trinity Community School, Inc. v. Kahl, 82 Wis. 2d 139, 262 N.W.2d 210 (1978). But see St. Augustine School v. Taylor, 2021 WI 70, 398 Wis. 2d 92, 961 N.W.2d 635, 21-0265. Refusal on religious grounds to send children to school was held to be a personal, philosophical choice by parents, rather than a protected religious expression. State v. Kasuboski, 87 Wis. 2d 407, 275 N.W.2d 101 (Ct. App. 1978). The primary effect of health facilities authority under ch. 231, which fiances improvements for private, nonprofit health facilities, does not advance religion, nor does the chapter foster excessive entanglement between church and state. State ex rel. Wisconsin Health Facilities Authority v. Lindner, 91 Wis. 2d 145, 280 N.W.2d 773 (1979). Meals served by a religious order, in carrying out their religious work, were not, under the circumstances, subject to Wisconsin sales tax for that portion of charges made to guests for lodging, food, and use of order’s facilities. Kollasch v. Adamany, 104 Wis. 2d 552, 313 N.W.2d 47 (1981). The test to determine whether governmental aid offends the establishment clause is discussed. Freedom from Religion Foundation v. Thompson, 164 Wis. 2d 736, 476 N.W.2d 318 (Ct. App. 1991). The free exercise clause does not excuse a person from compliance with a valid law. A visitation order intended to prevent a noncustodial parent from imposing his religion on his children was a reasonable protection of the custodial parent’s statutory right to choose the children’s religion. Lange v. Lange, 175 Wis. 2d 373, N.W.2d (Ct. App. 1993). In setting a sentence, a court may consider a defendant’s religious beliefs and practices only if a reliable nexus exists between the defendant’s criminal conduct and those beliefs and practices. State v. Fuerst, 181 Wis. 2d 903, 512 N.W.2d 243 (Ct. App. 1994). A nativity scene surrounded by Christmas trees and accompanied by a sign proclaiming a “salute to liberty” did not violate the 1st amendment’s establishment and free exercise clauses or Art. I, s.18. King v. Village of Waunakee, 185 Wis. 2d 25, 517 N.W.2d 671 (1994). Probation conditions may impinge on religious rights as long as the conditions are not overly broad and are reasonably related to rehabilitation. Von Arx v. Schwarz, 185 Wis. 2d 645, 517 N.W.2d 540 (Ct. App. 1994). The courts are prevented from determining what makes one competent to serve as a priest. As such, the courts cannot decide a claim of negligent hiring or retention by a church. Pritzlaff v. Archdiocese of Milwaukee, 194 Wis. 2d 302, 533 N.W.2d 780 (1995). See also L.L.N. v. Clauder, 209 Wis. 2d 674, 563 N.W.2d 434 (1997), 95-2084. The state is prevented from enforcing discrimination laws against religious associations when the employment at issue serves a ministerial or ecclesiastical function. While it must be given considerable weight, a religious association’s designation of a position as ministerial or ecclesiastical does not control its status. Jocz v. LIRC, 196 Wis. 2d 273, 538 N.W.2d 588 (Ct. App. 1995), 93-3042. But see Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, 565 U.S. 171, 132 S. Ct. 694, 181 L. Ed. 2d 650 (2012); Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. ___, 140 S. Ct. 2049, 207 L. Ed. 2d 870 (2020). Freedom of conscience as guaranteed by the Wisconsin Constitution is not constrained by the boundaries of protection set by the U.S. Supreme Court for the federal provision. As applied to Amish, requiring slow moving vehicle signs on buggies unconstitutionally infringed on religious liberties. Requiring Amish buggies to carry slow moving vehicle signs furthered a compelling state interest, but was not shown to be the least restrictive means of accomplishing that interest. State v. Miller, 202 Wis. 2d 56, 549 N.W.2d 235 (1996), 94-0159. The role courts may play in church property disputes is limited, but a court may adopt one of several approaches so long as the court does not entangle itself in doctrinal affairs. Church doctrine may be examined from a secular perspective, but courts may not interpret church law, policies, or practice. United Methodist Church, Inc. v. Culver, 2000 WI App 132, 237 Wis. 2d 343, 614 N.W.2d 523, 99-1522. While this article is more specific and terser than the clauses of the 1st amendment, it carries the same import. Both provisions are intended and operate to serve the purposes of prohibiting the establishment of religion and protecting the free exercise of religion. Jackson v. Benson, 218 Wis. 2d 835, 578 N.W.2d 602 (1998), 97-0270. To succeed in a constitutional challenge to a local fire prevention code, the complaining church had the initial burden of proving that there was a sincerely held religious belief that would be burdened by the application of the code. The church failed to carry this burden because it did not present evidence of any basic tenet, principle, or dogma supporting representations that an exposed sprinkler system would desecrate the worship space. Peace Lutheran Church and Academy v. Village of Sussex, 2001 WI App 139, 246 Wis. 2d 502, 631 N.W.2d 229, 00-2328. The Wisconsin constitution offers more expansive protections for freedom of conscience than those offered by the 1st amendment. When an individual makes a claim that state law violates his or her freedom of conscience, courts apply the compelling state interest/least restrictive alternative test, requiring the challenger to prove that he or she has a sincerely held religious belief that is burdened by application of the state law at issue. Upon such a showing, the burden shifts to the state to prove that the law is based in a compelling state interest that cannot be served by a less restrictive alternative. Noesen v. Department of Regulation and Licensing, 2008 WI App 52, 311 Wis. 2d 237, 751 N.W.2d 385, 06-1110. The free exercise clause of the 1st amendment protects not only the right to freedom in what one believes, but extends (with limitations) to acting on those beliefs. Both individuals and communities of individuals have a right to the freedom of religion. Courts have adopted a “ministerial exception” that protects houses of worship from state interference with the decision of who will teach and lead a congregation. Ordination is not required to be considered “ministerial.” The function of the position, as determined by whether the position is important to the spiritual and pastoral mission of the church and not whether religious tasks encompass the largest share of the position, is the primary consideration. Coulee Catholic Schools v. LIRC, 2009 WI 88, 320 Wis. 2d 275, 768 N.W.2d 868, 07-0496. The parents’ fundamental right to make decisions for their children about religion and medical care does not prevent the state from imposing criminal liability on a parent who fails to protect the child when the parent has a legal duty to act. The constitutional freedom of religion is absolute as to beliefs but not as to the conduct, which may be regulated for the protection of society. The Due Process clause protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children, but a parent’s fundamental right to make decisions concerning a child’s care has limitations. The state’s authority is not nullified merely because a parent grounds his or her claim to control the child in religious belief. State v. Neumann, 2013 WI 58, 348 Wis. 2d 455, 832 N.W.2d 560, 11-1044. The constitutionality of state tuition grants to parents of resident pupils enrolled in private elementary or high schools is discussed. 58 Atty. Gen. 163.
Guidelines to possibly avoid constitutional objection to CESA service contracts with private schools are discussed. 62 Atty. Gen. 75.
Leasing of university buildings to a religious congregation during nonschool days and hours on a temporary basis while the congregation’s existing facility is being renovated and leasing convention space to a church conference would not violate separation of church and state provisions of the 1st amendment. 63 Atty. Gen. 374.
The department of public instruction may, if so authorized under 16.54, implement the school lunch program and special food service plan for children in secular and sectarian private schools and child-care institutions without violating the U.S. or Wisconsin constitutions. 63 Atty. Gen. 473.
Funds received under Title I of the Elementary and Secondary Education Act may not be used to pay salaries of public school teachers teaching in church affiliated private schools. See 64 Atty. Gen. 139. 64 Atty. Gen. 136.
The establishment clause and this section prohibit public schools leasing classrooms from parochial schools to provide educational programs for parochial students. 67 Atty. Gen. 283.
A group of churches is entitled to a permit under s. 16.845 to use the capitol grounds for a civic or social activity even if the content of the program is partly religious in nature. 68 Atty. Gen. 217.
The U.S. and state constitutions do not prohibit the state from disbursing state matching funds under the National School Lunch Act to private, as well as, public schools. 69 Atty. Gen. 109.
The state can constitutionally license and regulate community based residential facilities that are operated by religious organizations and are not convents, monasteries, or similar facilities exempted by statute. 71 Atty. Gen. 112.
University of Wisconsin athletes may not engage in voluntary prayer led by a coach prior to an athletic event, although silent meditation or prayer organized by athletes may be undertaken within certain guidelines. 75 Atty. Gen. 81. But see Kennedy v. Bremerton School District, 597 U.S. ___, 142 S. Ct. 2407, 213 L. Ed. 2d 755 (2022). The scope of this section is discussed. 75 Atty. Gen. 251 (1986).
The establishment clause prohibits states from loaning instructional material to sectarian schools or providing auxiliary services to remedial and exceptional students in such schools. Meek v. Pittenger, 421 U.S. 349. In adjudicating a church property dispute, the state may adopt a “neutral principles of law” analysis regarding deeds, applicable statutes, local church charters, and general church constitutions. Jones v. Walf, 443 U.S. 595 (1979). The representation of the Ten Commandments as the basis for the legal code of western civilization violated the establishment clause. Stone v. Graham, 449 U.S. 39 (1980). The denial of unemployment compensation to a Jehovah’s Witness who quit a job due to religious beliefs was a violation of free exercise rights. Thomas v. Review Bd., Ind. Empl. Sec. Div., 450 U.S. 707 (1981). A state fair rule that limited a religious group to an assigned booth in conducting its religious activities did not violate the free exercise clause. Heffron v. Int’l Soc. for Krishna Consc., 452 U.S. 640 (1981). A public university that provided a forum to many student groups but excluded religious student groups violated the principle that state regulation of speech should be content neutral. Widmar v. Vincent, 454 U.S. 263 (1981). A nativity scene displayed by a city did not violate the establishment clause. Lynch v. Donnelly, 465 U.S. 668 (1984). Due to the setting and nature of the display, a menorah placed next to a Christmas tree placed outside of a city-county building did not violate the establishment clause while prominent placement of a creche inside a courthouse did. Allegheny County v. Pittsburgh ACLU, 492 U.S. 573, 106 L. Ed. 2d 472 (1989). The right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes or prescribes conduct that the individual’s religion prescribes or proscribes. Employment Division v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990). But see Fulton v. City of Philadelphia, 593 U.S. ___, 141 S. Ct. 1868, 210 L. Ed. 2d 137 (2021). The federal Equal Access Act prohibits high schools from barring student religious club meetings on school premises when other “noncurriculum-related” clubs are allowed access. Westside Community Schools v. Mergens, 496 U.S. 226, 110 L. Ed. 2d 191 (1990). A public school district’s inclusion of prayers at a public graduation ceremony, offered by a member of the clergy at the district’s request and direction, violated the establishment clause. Lee v. Weisman, 505 U.S. 77, 120 L. Ed. 2d 467 (1992). The denial of the use of a school building to a church seeking to exhibit a film when a nonsectarian group would have been allowed the use of the building to show a secular film on the same topic violated the right to free speech. Lamb’s Chapel v. Center Moriches, 508 U.S. 384, 124 L. Ed. 2d 352 (1993). A law that targets religious conduct for distinctive treatment is subject to the most rigorous scrutiny. The regulation of animal sacrifice that effectively prohibited the practices of one sect was void. Church of Lukumi v. Hialeah, 508 U.S. 520, 124 L. Ed. 2d 472 (1993). The provision of an interpreter by a school district to a student attending a parochial school was permissible when provided as a part of a neutral program benefitting all qualified children without regard to the sectarian-nonsectarian nature of the school. Zobrest v. Catalina Foothills, 509 U.S. 1, 125 L. Ed. 2d 1 (1993). Special legislation creating a public school district for a village consisting solely of members of a single religious community violated the establishment clause. Board of Education of Kiryas Joel v. Grumet, 512 U.S. 687, 129 L. Ed. 2d 546 (1994). A state university that funded the printing of a broad range of student publications but denied funding for printing the publication of a student religious group violated free speech guarantees and was not excused by the need to comply with the establishment clause. Rosenberger v. University of Virginia, 515 U.S. 819, 132 L. Ed. 2d (1995). A school district policy permitting student-led, student-initiated prayer at school football games violated the establishment clause of the 1st amendment because it had the purpose and created the perception of encouraging the delivery of prayer at important high school events. Santa Fe Independent School District v. Doe, 530 U.S. 290, 147 L. Ed. 2d 295 (2000). But see Kennedy v. Bremerton School District, 597 U.S. ___, 142 S. Ct. 2407, 213 L. Ed. 2d 755 (2022). Speech discussing otherwise permissible subjects cannot be excluded from a limited public forum, such as a school, on the grounds that it is discussed from a religious viewpoint. A club’s meetings, held after school, not sponsored by the school, and open to to any student who obtained parental consent, did not raise an establishment of religion violation that could be raised to justify content-based discrimination against the club. Good News Club v. Milford Central School, 533 U.S. 98, 150 L. Ed. 2d 151 (2001). The Cleveland, Ohio school choice program that provides tuition aid to parents who may use the money to pay tuition to private, religious schools does not violate the establishment clause. When an aid program is neutral with respect to religion and provides assistance to a broad class of citizens who, in turn, direct the aid to religious schools through individual choice, the program is not subject to challenge. Zelman v. Simmons-Harris, 536 U.S. 639, 153 L. Ed. 2d 604 (2002). The state of Washington, under its constitution, which prohibits even indirect funding of religious instruction that will prepare students for the ministry, could deny such students funding available to all other students without violating the free exercise clause of the 1st amendment. Locke v. Davey, 540 U.S. 712, 124 S. Ct. 1307, 158 L. Ed 2d 1 (2004). But see Espinoza v. Montana Department of Revenue, 591 U.S. ___, 140 S. Ct. 2246, 207 L. Ed. 2d 679 (2020). The Establishment Clause of the 1st amendment allows display of a monument inscribed with the Ten Commandments on the Texas State Capitol grounds. Van Orden v. Perry, 545 U.S. 677, 125 S. Ct. 2854, 162 L. Ed. 2d 607 (2005). A display of the Ten Commandments in a county courthouse violated the Establishment Clause of the 1st amendment. The government agency’s manifest objective in presenting the display may be dispositive of the constitutional enquiry, and the development of the presentation should be considered when determining its purpose. Governmental purpose needs to be taken seriously under the Establishment Clause and to be understood in light of context; an implausible claim that governmental purpose has changed should not carry the day in a court of law any more than in a head with common sense. McCreary County v. American Civil Liberties Union of Kentucky, 545 U.S. 844, 125 S. Ct. 2722, 162 L. Ed. 2d 729 (2005). Respondents’ status as taxpayers did not give them standing to challenge state tax credits to organizations that awarded scholarships to religious schools. For standing there must be a nexus between the plaintiff’s taxpayer status and the precise nature of the constitutional infringement alleged. Tax credits and governmental expenditures do not both implicate individual taxpayers in sectarian activities. A dissenter whose tax dollars are “extracted and spent” knows that he or she has in some small measure been made to contribute to an establishment in violation of conscience. When the government declines to impose a tax there is no such connection between dissenting taxpayer and alleged establishment. Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125, 131 S. Ct. 1436, 179 L. Ed. 2d 523 (2011). Certain employment discrimination laws authorize employees who have been wrongfully terminated to sue their employers for reinstatement and damages. However, the establishment and free exercise clauses of the 1st amendment to the U.S. Constitution bar such an action when the employer is a religious group and the employee is one of the group’s ministers. Thus, in an employment discrimination suit brought on behalf of a minister challenging her church’s decision to fire her, the ministerial exception barred the suit. Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, 565 U.S. 171, 132 S. Ct. 694, 181 L. Ed. 2d 650 (2012). See also Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. ___, 140 S. Ct. 2049, 207 L. Ed. 2d 870 (2020). Legislative prayer, while religious in nature, has long been understood as compatible with the establishment clause. As practiced by congress since the framing of the constitution, legislative prayer lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society. It is not necessary to define the precise boundary of the establishment clause where history shows that the specific practice is permitted. Any test the court adopts must acknowledge a practice that was accepted by the framers and has withstood the critical scrutiny of time and political change. Town of Greece v. Galloway, 572 U.S. 565, 134 S. Ct. 1811, 188 L. Ed. 2d 835 (2014). Once it invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian. So long as the town maintains a policy of nondiscrimination, the constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing. The quest to promote a diversity of religious views would require the town to make wholly inappropriate judgments about the number of religions it should sponsor and the relative frequency with which it should sponsor each. Town of Greece v. Galloway, 572 U.S. 565, 134 S. Ct. 1811, 188 L. Ed. 2d 835 (2014). Denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest of the highest order. A policy of categorically disqualifying churches and other religious organizations from receiving grants under a state playground resurfacing program violated the rights of a church applicant for a grant under the free exercise clause of the 1st amendment. Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 137 S. Ct. 2012, 198 L. Ed. 2d 551 (2017). A state civil rights commission violated the free exercise clause when it showed elements of a clear and impermissible hostility toward the sincere religious beliefs of a baker who declined to make a wedding cake for a same-sex couple in violation of a state anti-discrimination law. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. ___, 138 S. Ct. 1719, 201 L. Ed. 2d 35 (2018). Retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones. The passage of time gives rise to a strong presumption of constitutionality under the establishment clause. American Legion v. American Humanist Ass’n, 588 U. S. ____, 139 S. Ct. 2067, 204 L. Ed. 2d 452 (2019). The Montana Constitution bars aid to any school controlled in whole or in part by any church, sect, or denomination. Like the grants at issue in Trinity Lutheran, 582 U.S. 449 (2017), the no-aid provision bars religious schools from public benefits solely because of the religious character of the schools. A state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious. Therefore, the free exercise clause of the 1st amendment to the U.S. Constitution precluded the Montana Supreme Court from applying Montana’s no-aid provision to bar religious schools from a scholarship program established by the Montana Legislature. Espinoza v. Montana Department of Revenue, 591 U.S. ___, 140 S. Ct. 2246, 207 L. Ed. 2d 679 (2020). See also Carson v. Makin, 596 U.S. ___, 142 S. Ct. 1987, 213 L. Ed. 2d 286 (2022). The refusal of a city to contract with a child welfare agency for the provision of foster care services unless the child welfare agency agrees to certify same-sex couples as foster parents cannot survive strict scrutiny and violates the 1st amendment. Fulton v. City of Philadelphia, 593 U.S. ___, 141 S. Ct. 1868, 210 L. Ed. 2d 137 (2021). When a government does not speak for itself, it may not exclude speech based on religious viewpoint; doing so constitutes impermissible viewpoint discrimination. In this case, the city’s program that allowed private groups to request use of the flagpole outside city hall to raise flags of their choosing did not express government speech. As a result, the city’s refusal to let the applicants fly their Christian flag based on its religious viewpoint violated the free speech clause of the 1st amendment and did not raise an establishment of religion violation. Shurtleff v. City of Boston, 596 U.S. ___, 142 S. Ct. 1583, 212 L. Ed. 2d 621 (2022). The expressive activity of a high school football coach who knelt at midfield after games to offer a quiet prayer of thanks during a period when school employees were free to attend to personal matters and while students were otherwise occupied was protected by the free exercise and free speech clauses of the 1st amendment, and the establishment clause did not require or allow the school district to single out the coach’s private religious speech for special disfavor. The establishment clause does not compel the government to purge from the public sphere anything an objective observer could reasonably infer endorses or partakes of the religious. Kennedy v. Bremerton School District, 597 U.S. ___, 142 S. Ct. 2407, 213 L. Ed. 2d 755 (2022).
