Religion

The Establishment Clause prohibits the government from interfering with individual religious beliefs. The government cannot enact laws aiding any religion or establishing an official state religion. The courts have interpreted the Establishment Clause to accomplish the separation of church and state on both the national and state levels of government.

The authors of the First Amendment drafted the Establishment Clause to address the problem of government sponsorship and support of religious activity. The Supreme Court has defined the meaning of the Establishment Clause in cases dealing with public financial assistance to church-related institutions, primarily parochial schools, and religious practices in the public schools. The Court has developed a three-pronged test to determine whether a statute violates the Establishment Clause. According to that test, a statute is valid as long as it has a secular purpose; its primary effect neither advances nor inhibits religion; and it is not excessively entangled with religion. Because this three-pronged test was established in Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971), it has come to be known as the Lemon test. Although the Supreme Court adhered to the Lemon test for several decades, since the 1990s, it has been slowly moving away from that test without having expressly rejected it.

The Court has stated that the Establishment Clause means that neither a state nor the federal government can organize a church. The government cannot enact legislation that aids one religion, aids all religions, or prefers one religion over another. It cannot force or influence a person to participate in, or avoid, religion or force a person to profess a particular religious belief. No tax in any amount can be levied to support any religious activities or organizations. Neither a state nor the federal government can participate, whether openly or secretly, in the affairs of any religious groups.

Federal and state governments have accepted and implemented the doctrine of the separation of church and state by minimizing contact with religious institutions. Although the government cannot aid religions, it can acknowledge their role as a stabilizing force in society. For example, religious institutions, along with other charitable or nonprofit organizations, have traditionally been given tax exemptions. This practice, even when applied to religious organizations, has been deemed constitutional because the legislative aim of a property tax exemption is not to advance religion but to ensure that the activities of groups that enhance the moral and mental attitudes of the community will not be inhibited by taxation. The organizations lose the tax exemption if they undertake activities that do not serve the beneficial interests of society. Thus, in 1983, the Supreme Court decided in Bob Jones University v. United States, 461 U.S. 574, 103 S. Ct. 2017, 76 L. Ed. 2d 157, that nonprofit private schools that discriminated against their students or prospective students on the basis of race could not claim tax-exempt status as a charitable organization for the purposes of federal tax laws.

It is also believed that the elimination of such tax exemptions would lead the government into excessive entanglements with religious institutions. The exemption, therefore, is believed to create only a minimal and remote involvement between church and state—less than would result from taxation. The restricted fiscal relationship, therefore, enhances the desired separation.

Religion and Education The many situations in which religion and education overlap are a source of great controversy. In the early nineteenth century, the vast majority of Americans were Protestant, and Protestant-based religious exercises were common in the public schools. Legal challenges to these practices began in the state courts when a substantial number of Roman Catholics arrived in the United States. Until 1962 when the U.S. Supreme Court began to directly address some of these issues, most states upheld the constitutionality of prayer and Bible reading in the public schools.

In the 1962 case of ENGEL V. VITALE, 370 U.S. 421, 82 S. Ct. 1261, 8 L. Ed. 2d 601, the Supreme Court struck down as unconstitutional a prayer that was a recommended part of the public school curriculum in the state of New York. The prayer had been approved by Protestant, Catholic, and Jewish leaders in the state. Although the prayer was nondenominational and student participation in it was strictly voluntary, it was struck down as violative of the Establishment Clause.

In 1963, the Supreme Court heard the related issues of whether voluntary Bible readings or recitation of the Lord's Prayer were constitutionally appropriate exercises in the public schools (ABINGTON SCHOOL DISTRICT V. SCHEMPP, 374 U.S. 203, 83 S. Ct. 1560, 10 L. Ed. 2d 844). It was in these cases that the Supreme Court first formulated the three-pronged test for constitutionality. In applying the new test, the Court concluded that the exercises did not pass the first prong of the test: they were not secular in nature, but religious, and thus they violated the Establishment Clause because they violated state neutrality requirements.

Although students in public schools are not permitted to recite prayers, the practice of a state legislature opening its sessions with a nondenominational prayer recited by a chaplain receiving public funds has withstood constitutional challenge. In Marsh v. Chambers, 463 U.S. 783, 103 S. Ct. 3330, 77 L. Ed. 2d 1019 (1983), the Supreme Court ruled that such a practice did not violate the Establishment Clause. In making its decision, the Court noted that this was a customary practice and that the proponents of the BILL OF RIGHTS also approved of the government appointment of paid chaplains.

The Supreme Court has also held that a religious invocation, instituted by school officials, at a public school graduation violates the Establishment Clause (LEE V. WEISMAN, 505 U.S. 577, 112 S. Ct. 2649, 120 L. Ed. 2d 467 [1992]). Subsequently, the Court made clear that even indirect school support of a prayer given by students violates the First Amendment. In Santa Fe Independent School District v. Doe, 530 U.S. 290, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000), the Court held that a Texas public school district could not let its students lead prayers over the public address system before its high school football. The school district's sponsorship of the public prayers by elected student representatives was unconstitutional because the schools could not coerce anyone to support or participate in religion.

In 1980, the Supreme Court overturned a Kentucky statute requiring the posting of the Ten Commandments, copies of which were purchased with private contributions, in every public school classroom (Stone v. Graham, 449 U.S. 39, 101 S. Ct. 192, 66 L. Ed. 2d 199). Although the state argued that the postings served a secular purpose, the Court held that they were plainly religious. Four of the Supreme Court's nine justices dissented from the Court's opinion and were prepared to conclude that the postings were proper based on their secular purpose.

Because the Establishment Clause calls for government neutrality in matters involving religion, the government need not be hostile or unfriendly toward religions because such an approach would favor those who do not believe in religion over those who do. In addition, if the government denies religious speakers the ability to speak or punishes them for their speech, it violates the First Amendment's right to FREEDOM OF SPEECH. The Supreme Court held in 1981 that it was unconstitutional for a state university to prohibit a religious group from using its facilities when the facilities were open for use by organizations of all other kinds (Widmar v. Vincent, 454 U.S. 263, 102 S. Ct. 269, 70 L. Ed. 2d 440). The principles established in Widmar were unanimously reaffirmed by the Supreme Court in Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 113 S. Ct. 2141, 124 L. Ed. 2d 352 (1993). In 1995, the Supreme Court held that a state university violates the Free Speech Clause when it refuses to pay for a religious organization's publication under a program in which it pays for other student organization publications (Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 115 S. Ct. 2510, 132 L. Ed. 2d 700).

Facing another education and religion issue, the Supreme Court declared in Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S. Ct. 461, 92 L. Ed. 649 (1948), that public school buildings could not be used for a program that allowed pupils to leave classes early to receive religious instruction. The Court found that this program violated the Establishment Clause because the tax-supported public school buildings were being used for the teaching of religious doctrines, which constituted direct government assistance to religion.

However, the Court held that a release-time program that took place outside the public school buildings was constitutional because it did not involved religious instruction in public school classrooms or the expenditure of public funds (Zorach v. Clauson, 343 U.S. 306, 72 S. Ct. 679, 96 L. Ed. 954 [1952]). All costs in that case were paid by the religious organization conducting the program.

The U.S. Supreme Court has also held that states may not restrict the teaching of ideas on the grounds that they conflict with religious teachings when those ideas are part of normal classroom subjects. In Epperson v. Arkansas, 393 U.S. 97, 89 S. Ct. 266, 21 L. Ed. 2d 228 (1968), the Court struck down a state statute that forbade the teaching of evolutionary theory in public schools. The Court held that the statute violated the Establishment Clause because its purpose was to protect religious theories of creationism from inconsistent secular theories.

In Edwards v. Aguillard, 482 U.S. 578, 107 S.Ct. 2573, 96 L.Ed. 2d 510 (1987), the Supreme Court struck down a Louisiana "Creationism Act" which prevented any teaching of evolution in public schools unless the course was also accompanied by the teaching of biblical creationism. In his majority opinion, Justice WILLIAM BRENNAN wrote that the Lemon test had to be used to judge the constitutionality of the Creationism Act. The state contended that the law was simply designed to promote ACADEMIC FREEDOM by ensuring that students would hear about more than one theory on the origins of life. However, the Court noted that teachers were permitted to present more than one such theory before the law had been passed. The actual purpose of the law, then, had to be to make sure that creationism was taught if anything at all was taught. Brennan ruled that the act did not have a secular purpose and that it did not advance academic freedom. To the contrary, it restricted the abilities of teachers to teach what they deemed appropriate. Brennan also pointed out that Louisiana provided instructional packets to assist in the teaching of creationism but did not provide similar materials for the teaching of evolution. This demonstrated an interest in promoting creationism and religion.

In a 1993 case, the Supreme Court held that the Establishment Clause did not prevent a public school from providing a sign language interpreter for a deaf student who attended a religiously affiliated school within the school district (Zobrest v. Catalina Foothills School District, 509 U.S. 1, 113 S. Ct. 2462, 125 L. Ed. 2d 1). Commentators have noted that this case demonstrates the Court's willingness to uphold religiously neutral government aid to all school children, regardless of whether they attend a religiously affiliated school, where the aid is designed to help the children overcome a physical or learning disability. As of 2003, it was not clear, however, whether the Court would extend this holding to more general forms of aid to children in religious and public schools alike.

Government and Religion The closing of government offices on particular religious holidays is unconstitutional if no secular purpose is served (Mandel v. Hodges, 54 Cal. App. 3d 596, 127 Cal. Rptr. 244 [1976]). But if employees won the closing through COLLECTIVE BARGAINING, it is permissible even without a secular purpose (Americans United for Separation of Church and State v. Kent County, 97 Mich. App. 72, 293 N.W. 2d 723 [1980]).

Government display of symbols with religious significance raises Establishment Clause issues. In the 1984 case of Lynch v. Donnelly, 465 U.S. 668, 104 S. Ct. 1355, 79 L. Ed. 2d 604, the Supreme Court upheld the right of a city to erect in a park a Christmas display that included colored lights, reindeer, candy canes, a Santa's house, a Christmas tree, a "SEASONS GREETINGS" banner, and a nativity scene. The Court decided the inclusion of the nativity scene along with traditional secular Christmas symbols did not promote religion to an extent prohibited by the First Amendment.

Since the mid-1990s, displays of the Ten Commandments in public buildings other than schools has become more common. Several judges drew national attention when they posted the Ten Commandments in their courtrooms, thereby triggering litigation. Alabama trial judge Roy Moore used the publicity from his refusal to remove the Ten Commandments from his courtroom to run for and be elected chief justice of the Alabama Supreme Court in November 2000. After taking office in January 2001, he briefly avoided controversy by posting the Ten Commandments in his chambers rather than in the Supreme Court's courtroom. However, Moore installed a 5,300 pound Ten Commandments monument in the judicial building on a summer night in 2001. A group of citizens objected and filed a lawsuit in U.S. District Court. In November 2002, the federal court issued an order directing Moore to remove the monument. Moore refused and vowed to appeal the decision (Glassroth v. Moore, 242 F.Supp. 2d 1068 [M.D.Ala.2002]). In 2003, the Eleventh Circuit Court of Appeals affirmed the lower court decision in Glassroth v. Moore, 335 F. 3d 1282. Despite a federal court order to remove the monument, Moore refused. Finally, in September 2003, the other members of the Alabama Supreme Court had the monument removed. Moore was suspended from office while a judicial inquiry commission reviewed his conduct.