Number 3
CHURCH AND STATE
The United States is the most religiously diverse nation in the world.
More than 1,500 different religious bodies and sects, including 75 varieties
of Baptists alone, co-exist and flourish in our nation. We have 360,000
churches, mosques, and synagogues.
Americans are also extremely devout. According to recent surveys, more
than 90 percent of Americans profess a belief in God; more than half say
they pray at least once a day, and more than 40 percent say they have attended
worship services during the previous week. The Census Bureau reports that
63 percent of the population claims church membership, a figure that has
remained virtually unchanged since the 1960 census.
How has the U.S. been able to maintain, on the one hand, an extremely
diverse and devout religious population, and on the other an extremely
low incidence of sectarian strife? The American Civil Liberties Union believes
that the answer lies in a time-tested formula: the complete separation
of church and state required by the First Amendment to our Constitution.
Many people mistakenly believe that separation of church and state implies
official hostility to religion. But, in fact, the opposite is true: It
was their belief in the preciousness and sanctity of religious faith that
engendered the Founders' determination to protect religion from government
interference. They understood that religious liberty can flourish only
if the government leaves religion alone.
For more than 75 years, the ACLU has defended religious freedom and
challenged attempts by sectarians to impose their religious beliefs and
practices on others through government sponsorship.
- In 1925, the ACLU defended biology teacher John Scopes, in the famous
"monkey trial," against the charge that he had broken Tennessee's
fundamentalist-inspired ban on the teaching of evolution.
- In the 1930s, the ACLU supported the right of Jehovah's Witness schoolchildren
not to salute the American flag, which would have violated their religious
beliefs.
- In 1947, the ACLU participated in the landmark case, Everson v.
Board of Education, in which the United States Supreme Court proclaimed:
"The First Amendment has erected a wall of separation between church
and state. That wall must be kept high and impregnable. We would not approve
the slightest breach."
- In the 1950s and 1960s, responding to numerous complaints from the
public, the ACLU challenged official prayer and bible reading in the nation's
public schools -- and won. the Supreme Court ruled, in Engel v. Vitale
and in School District of Abington Township v. Schempp, that school
prayer and Bible reading are unconstitutional.
- In the 1980s, the ACLU successfully fought bills introduced in 23 state
legislatures mandating that the public schools teach "scientific creationism"
-- the biblical version of the earth's creation.
- In the early 1990s, the ACLU joined with religious and civil liberties
organizations to fight for Congressional passage of the Religious Freedom
Restoration Act, which strengthens protection for the rights of religious
minorities.
Today, as in the past, the main arena of struggle in in the nation's
public schools. And today, as in the past, the ACLU offers legal assistance
to parents, students, teachers, school board members and school administrators
in resisting the efforts of religious groups to impose devotional activities
in the classroom, on sports fields and at graduation exercises.
Religion and American Public Schools
The History of Prayer in Our Public Schools
The controversy over officially sponsored prayer in public schools did
not begin in 1962, when the Supreme Court first ruled that such observances
violate the Establishment Clause. It began more than 100 years earlier,
in the 1830s, when waves of Italian and Irish Catholic immigrants came
to this country and objected to compulsory readings of the Protestant King
James Bible and the recitation of Protestant prayers in most public schools.
A bitter conflict erupted, including riots, the expulsion of Catholic children
from public schools, the burning of convents and even some deaths.
In the 1950s, as the religious diversity of our society increased, school
prayer became a divisive issue once again. Now Jewish, Buddhist, Hindu,
Moslem and atheist parents objected to Christian practices in the public
schools.
Out of this conflict arose Engel v. Vitale, a 1962 case in which
the Supreme Court ruled against officially sponsored and organized school
prayer: "We think," wrote Justice Hugo L. Black for the Court,
"that by using its public school system to encourage recitation of
the Regents' prayer [a nondenominational prayer created by the government],
the State of New York has adopted a practice wholly inconsistent with the
Establishment Clause." The following year, in School District of
Abington Township v. Schempp, the Court held that Bible readings in
public schools also violate the First Amendment.
President John F. Kennedy, the country's first Catholic president, urged
respect for the Court's decision in Engel: "We have in this
case a very easy remedy, and that is to pray ourselves. And I would think
it would be a welcome reminder to every American family that we can pray
a good deal more at home, we can attend our churches with a good deal more
fidelity, and we can make the true meaning of prayer much more important
in the lives of our children."
But not everyone agreed with the President. Within a month, over 25
resolutions, calling for constitutional amendments to override the Court's
decision, were introduced in Congress -- including one that urged adoption
of a "Christian amendment." Organized efforts to circumvent the
Engel ruling have continued ever since, and schools and school districts
throughout the country have continued to sponsor prayer in violation of
the rights of religious minorities.
What's wrong with official school prayer?
Officially organized and sponsored devotional exercises in the public
school setting are inconsistent with the principle of religious liberty
in several ways. Such exercises make children feel they must participate
or face the disdain of their teachers and fellow students. Children whose
religious beliefs are different from those of the majority must not be
made to feel like outsiders in their schools.
Official school prayer also usurps the right of parents to determine
if, how, when, where and to whom their children should pray. When schools
sponsor prayer or any other religious activity, they infringe on parents'
right to choose the religious tradition in which they raise their children.
Muslim, Jewish or Hindu parents don't want their children to participate
in Christian observances. Atheist parents don't want their children to
pray at all. Parents should not have to fear that the public schools are
indoctrinating their children in beliefs that are counter to their families'
beliefs.
Can students ever pray in school?
Of course. Religious speech, like other speech, is protected by the
First Amendment. Public school students have the right to read the Bible,
recite the rosary, pray before meals and examinations and discuss their
religious views with their fellow students, as long as they do so outside
of the educational process. Students do not, however, have the right to
impose their religious expression on a captive audience of other students
-- for example, by broadcasting religious pronouncements or prayers over
the school public address system -- nor to compel other students to engage
in any religious activity.
What about "student-initiated" prayer?
The issue of "student-initiated prayer" has arisen in the
context of graduation ceremonies. Until 1992, it was common in some parts
of the country for a member of the clergy to offer a prayer during graduation
exercises. But that year, the Supreme Court ruled in Lee v. Weisman
that including prayer in a school-sponsored and -supervised graduation
ceremony violated the Establishment Clause. Justice Anthony P. Kennedy,
writing for the Court, explained:
"The prayer exercises in this case are especially improper because
the State has in every practical sense compelled attendance and participation
in an explicitly religious exercise at an event of singular importance
to every student, one the objecting student had no real alternative to
avoid."
As with the Engel decision 30 years earlier, an outcry from certain
religious quarters greeted the Weisman ruling. Seizing upon what
they viewed as a loophole, some religious leaders argued that though the
Court had prohibited clergy from delivering prayer at graduations, it had
not barred students from doing so. "Student-initiated prayer"
must be allowed, they said. Some school administrators and school boards
proceeded to allow graduating classes to vote on whether or not a student
volunteer would deliver a prayer at graduation. This led to another round
of lawsuits by students and parents opposed to any form of organized prayer
at graduations. The Supreme Court has not yet ruled in this latest struggle.
The ACLU believes that the Court's ruling in Weisman is as crystal
clear in prohibiting "student-initiated prayer" as it is in barring
prayer by members of the clergy. Why? Because a graduation ceremony is
a public school event. Time for prayer at that event can be reserved only
with the school administration's consent. Thus, no matter who initiates
the prayer, whether students, teachers or parents, school officials presiding
at that school event are the prayer's sponsors -- which violates the Establishment
Clause.
As for the claim that students should be free to vote a prayer up or
down, that directly infringes on the fundamental constitutional rights
of students and parents who belong to minority religions.
Fundamental rights, being inalienable, are not subject to a vote. Justice
Robert H. Jackson best explained this principle in his 1943 opinion recognizing
the right of Jehovah's Witnesses not to salute the flag:
"The very purpose of a Bill of Rights was to withdraw certain subjects
from the vicissitudes of political controversy, to place them beyond the
reach of majorities and officials and to establish them as legal principles
to be applied by the courts. One's right to life, liberty and property,
to free speech, a free press, freedom of worship and assembly, and other
fundamental rights may not be submitted to vote; they depend on the outcome
of no elections." (West Virginia v. Barnette)
But wouldn't prayer in school help restore moral values to our classrooms?
Concern that a crisis of values exists in our society is widespread
in the face of violent crime, troubled and disintegrating families, and
many young people's seeming hopelessness and lack of direction. Many Americans
look to religion as the primary source of values and urge a stronger role
for religion in public life. Prayer and perhaps other religious observances,
they argue, would be an antidote to today's social problems. Some even
contend that a steep moral decline in the nation was caused mainly by the
removal of organized prayer from the schools in accordance with the 1962
Supreme Court decision in Engel v. Vitale. These viewpoints are
problematic on several counts:
- It is simplistic to think that mere recitation of a necessarily watered
down, nondenominational prayer every morning could have any impact on complicated
social problems that are rooted in poverty, inequality and lack of opportunity.
- If removal of organized prayer from the schools caused the alleged
"decline in moral values," how is it that Americans are as religious
today as ever?
- Nostalgia for a presumably "moral" United States of the past
ignores the reality that before 1962 organized school prayer coexisted
with Jim Crow laws in the South, official discrimination against women
in education and employment, and political repression in public life. If
anything, our nation is a more moral place today given the vigorous attempts
to eradicate bigotry from our political, cultural and social institutions.
Public schools do and should impart moral values to our children, including
the civic virtues of honesty, good citizenship, ethics and respect for
the rights and freedoms of others. But religion should be practiced in
the home, the church, the synagogue, the temple and the mosque and not
at official events.
Do student clubs have the right to use school facilities?
Yes. The Equal Access Act, passed by Congress in 1984, protects the
right of secondary school students to hold religious club meetings on public
school grounds during noninstructional time, if other, noncurriculum-related
student groups -- such as political clubs, community service clubs, etc.
-- are also allowed to meet at a school. The Supreme Court upheld the constitutionality
of the Act in 1990, in Westside Community Schools v. Mergens. The
Court indicated, however, that schools must treat religious clubs differently
from other student clubs. To guard against improper governmental support
for religion, school employees may not initiate, direct or participate
in religious club meetings -- although a school staff person may be present
to keep order an ensure safety.
The First Amendment
"Congress shall make no law respecting the establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to assemble, and
to petition the Government for a redress of grievances."
The First Amendment, in what is called the Establishment Clause, guarantees
the separation of religion from the government, and in the Free Exercise
Clause prohibits the government from interfering with individuals' right
to worship as they choose. Together, these principles protect our freedom
to practice any religion or no religion at all.
The Bill of Rights was ratified in 1791, but it took two centuries for
a body of law on the church/state relationship to evolve. Indeed, not until
the 1940s did the U.S. Supreme Court begin to articulate whether a particular
law, rule or practice runs afoul of First Amendment principles with respect
to religion.
The Establishment Clause
In the year that the First Amendment was adopted, no state had a single
"established" church, as in England, but five states had multiple
establishments, with the power of the government behind them, the established
denominations often persecuted the members of various minority religions.
Baptists, Quakers, Jews and others were denied the right to hold public
office and were required to pay taxes to support the established churches.
By the time the Constitution was framed, many of its framers had come
to believe strongly in "disestablishment." For example, Thomas
Jefferson wrote of the need for "a wall of separation between church
and state," and in 1785 James Madison wrote in his Memorial and
Remonstrance that "[r]eligion is not helped by establishment,
but is hurt by it." In 1791, when the Bill of Rights was adopted,
it reflected this view.
More than a century and a half later, in 1971, the Supreme Court's decision
in Lemon v. Kurtzman put forth a three-part test for determining
whether a law or government policy has breached the wall between church
and state. The Lemon test, still used by the courts today, asks
(1) whether the government's action has a religious purpose; (2) whether
the primary effect of the government's action is to advance or endorse
religion; and (3) whether the government's action fosters excessive government
"entanglement" with religion. If the answer to any one of these
questions is "yes," then the law or policy violates the Establishment
Clause.
The Free Exercise Clause
The roots of the Free Exercise Clause reach back to the country's early
colonial history. Roger Williams, who fled religious persecution in England
and, in 1644, founded Rhode Island as a haven for religious minorities,
said it was God's command that "a permission of the most Paganish,
Jewish, Turkish, or Antichristian consciences and worships, be granted
to all men in all Nations and Countries."
In spite of this sentiment, intolerance has occasionally threatened
minorities' freedom of worship. The Supreme Court, therefore, beginning
in 1940, handed down a series of decisions that formed a bulwark of protection
for religious liberty.
- In 1940, the Court upheld the right of Jehovah's Witnesses to proselytize
on a street corner (Cantwell v. Connecticut).
- In 1943, the Court ruled that Jehovah's Witness children could not
be forced to salute the flag in public schools (West Virginia v. Barnette).
- In 1963, the Court held that a Seventh Day Adventist could not be denied
unemployment insurance because she refused to work on Saturdays (Sherbert
v. Verner).
- And in 1972, the Court overturned the conviction of an Amish parent
who refused to send his children to school beyond the eighth grade (Wisconsin
v. Yoder).
Not all religious practice is protected, however, even though the freedom
to believe is absolute. To determine whether a particular religious ritual
is covered by the Free Exercise clause, the Supreme Court developed a test:
A person or group must show (1) that the ritual is motivated by "sincere
religious belief," and (2) that the state has imposed a "substantial
burden" on the practice. If these two criteria are met, the government
must accommodate the religious practice -- unless the government
can show that it has a "compelling interest" in restricting the
practice, and that its restriction is the most lenient way possible (the
"least restrictive means") of serving that interest.
In 1990, the Supreme Court changed the test, seriously undermining the
right to religious freedom. In Employment Division v. Smith, the
Court upheld the denial of unemployment benefits to two members of the
Native American Church who had been fired from their jobs for smoking peyote
-- a hallucinogen which has been an integral part of Native American religious
practices for centuries. This ruling eliminated the requirement that the
government prove a "compelling interest" in restricting a religious
practice. Now the government merely had to show that, in restricting a
practice, it was not singling out a particular religion for discriminatory
treatment. The Court reasoned that since peyote was prohibited for everyone,
Native Americans were not being singled out and, therefore, had no free
exercise claim.
A broad coalition of civil liberties and religious organizations quickly
formed to demand that Congress repair the damage to religious liberty caused
by the Smith decision. Answering the call, Congress passed the Religious
Freedom Restoration Act in 1993, which restored the previous "compelling
interest" test for all restrictions on the free exercise of religion.
A C L U American Civil Liberties Union, 125 Broad Street, New York,
N.Y. 10004
