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Top: Jewish Founded Organizations: ACLU: Church and State Brief on ACLU Website
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
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