from John Arthur, The Unfinished Constitution (1989), Ch. 5
On the Separation of Church and State
1. Examples of church/state integration (lack of separation)
b. States or federal government outlawing a specific religion
c. National or state church
d. Compulsory church attendance
e. Religious qualification for public offices
f. Paying clergy with public funds
g. Direct governmental aid to religious schools
i. Using tax dollars to pay for them
ii. What about vouchers (public money for education) that can be used by parents to send children to religious schools (or public schools)?
i. City’s Christmas display of birth of Jesus
j. State statute mandating posting of Ten Commandments on public classroom walls (invalidated)
k. “In God we Trust” on our currency
l. “One Nation Under God” in the pledge of allegiance
m. School prayer
i. Prayer at CofC graduation
n. Clearly permissible?
o. Exhibition of religious paintings in governmentally supported museums or buildings
p. Teachers at CofC asked to let students miss class and make up work because of religious holidays
q. Chaplains in the military/prisons
r. Indirect governmental aid to religious schools
i. Paving roads to them
ii. Fire/police protection
iii. Reimbursing parents for transportation costs to such schools??
s. Sunday closing laws
t. Christmas a public holiday
u. Exempting people from military service on religious grounds
w. Does having to pay taxes to support public schools, in addition to paying for private religious schools where one’s children go, limit free exercise of religion?
x. Does teaching evolution (and secular humanism?) fail to be neutral on religion?
ARGUMENTS FOR SEPARATION
2. James Madison ideas in favor of separation
a. Legal establishment of religion has led to
i. “Pride and indolence in the Clergy”
ii. Bigotry and persecution
iii. Torrents of blood have been spilt trying to prevent there being difference of opinion about religion
b. Does religion need government or government religion?
i. No; each is a corrupting influence on the other
ii. Religion and government will exist in greater purity the less they are mixed
iii. Religion flourishes in greater purity w/o the aid of government
c. “The danger of bringing them together can’t be too carefully guarded against”
d. Religious enthusiasm endangers ends of government
i. Religion would not serve to restrain a tyrannical government violating rights of minority, but likely support it
3. Justice Black, Engle, 1962:
a. “Whenever government has allied itself with one particular form of religion, the inevitable result has been that it has incurred the hatred, disrespect and even contempt of those who held contrary beliefs”
b. People lose their respect for religion that had relied upon support of government to spread its faith
c. “Historical fact: governmentally established religions and religious persecutions go hand in hand”
i. True of England?
4. Arthur’s check on state power argument
a. One way to reduce power of the State is to insure its power is balanced by other institutions
i. Independent press
ii. Religious institutions can serve this function
(1) Poland and Latin America in 1980s
b. If religion is to provide a check on state authority, it can’t become entangled with and dependent on government.
ARGUMENTS FOR INTEGRATION
5. Necessity of religious instruction
a. Can government/society survive and prosper if its children are not provided religious instruction?
6. Political community requires religious training
a. Concern for well being and rights of others and value of community depend on government support of religious training and belief
b. Easier to build an elegant house w/o tools to work with than to establish a durable Government w/o the pubic protection of religion
c. Far from threatening political harmony, religion is essential for people to live together
d. Far from being a danger, religion is vital for self-improvement and respect for others
e. Government not to be neutral but aims to facilitate growth of communities, including ones informed by religion
f. Equality and individual rights are second place to virtue and rights of communities to realize conception of the good life
7. Zorach v. Clauson 1952:
a. Supported public school policy giving students time off to attend religious services and instruction away from school
b. Justice Douglas of majority (later he regretted his words here)
i. We are a religious people whose institutions presuppose a Supreme Being
ii. We guarantee freedom to worship as one chooses
(1) But not to reject worship/religion?
iii. When state encourages religious instruction or cooperates with religious authority by adjusting schedule of public events to sectarian needs, it follows best of our traditions
8. Religion necessary for morality
a. Experience shows religion the guardian of morals
b. Religion, along with reward and punishment, are only way to controlling “turbulent passions of mankind”
i. W/o fear of punishment associated with religion, state is subject to passions of the masses (opposite of Madison’s position)
c. Religion is necessary to provide motivation to be moral
i. Fear of god’s wrath and hope of eternal life to be motivated to do right thing or doing so out of love of god
d. Arthur thinks other motivations besides religious ones drive morality
i. Many reasons for doing right thing and often religion not given a thought
ii. Fear of punishment by legal authorities or parents, fear of embarrassment, or simple desire to do right think and not hurt others
iii. Refuse to kill or cheat because of God, or because you don’t want to get caught, be embarrassed in front of others or feel guilty afterward?
iv. Think of yourself as a honest person
e. Religion necessary for objective morality:
i. God the law giver is what makes moral right and wrong objective
ii. Reply: Ignores secular ways of grounding morality: utilitarianism, Kantianism, Rawlsian contract theory....
9. U.S. Not religiously diverse at our founding
a. Mainly different protestant denominations; few Catholics and almost no non-Christians
10. State support of religion commonplace at time of constitutional convention
a. Some states required belief in God as prerequisite for holding public office
i. S.C. did until Herb Silverman challenged it a few years ago!
b. 5 states had state supported churches, including S.C.
c. N.J. gave full civil rights only to Protestants
11. States had religious authority until 14th amendment ratified in 20th century (which extended the bill of rights to the states),
a. Until then, it would have been constitutional for a state legislature to outlaw a religious sect
(1) 14th amendment: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
12. 1st amendment begins: “Congress shall make no law respecting an establishment of religion (“establishment clause”), or prohibiting the free exercise thereof” (“free exercise clause”)
a. It goes on to say: “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”
b. Government neutrality is mainstream interpretation: Government must remain neutral in field of religion
13. Free exercise clause
a. Individuals right to worship in manner of own choosing
b. Government may not coerce people to accept or participate in any particular religion; official state religion or some other
c. One could have free exercise even with an established religion
i. England has established religion that does not infringe on free exercise
14. Establishment clause
a. Political and religious institutions should be kept at arms length
b. Hostility toward national church (or state church)
i. Originally, for some, “republicans” an effort to protect state religious establishments from national intrusion
c. Madison: Distrust of religious institutions especially when aligned with government.
d. Jefferson: “A wall of separation between church and state”
i. Cracks in the wall tend to grow with time
e. Neutrality not just between religions, but between religion and non-religion
15. Non-neutrality interpretation (by “republicans”)
a. Government should encourage virtuous behavior, including how people ought to live
b. State government should continue to encourage religious belief of citizens
c. Religious convictions essential if republican Government to succeed
d. So insisted on 1st amendment–not to keep religion and Government separate, but to provide insurance against federal intrusion into important local function
16. Conflict between the two clauses?
a. Too strong anti-establishment, might infringe on free exercise?
b. Does having to pay taxes to support public schools, in addition to paying for private religious schools where one’s children go, limit free exercise of religion?
c. Exempting people from military service on religious grounds
i. Granting conscientious objector status to religions that teach pacifism needed to support free exercise
ii. Law favors certain religious groups and this seems to violate establishment clause
17. Arthur: Not Absolute Neutrality
a. Neutrality does not mean government must ignore people’s religious beliefs and can’t provide any aid
b. Government may make accommodations for religious practices
i. Chaplains in the military/prisons
ii. Christmas a public holiday
iii. Refer to God on currency
c. Government aids religion by
i. Assigning police to protect church property and lives of clergy
ii. Paving roads leading to churches
iii. Hearing aids to poor people who sometimes use them to listen to sermons
d. For Government to stay completely out of religion would be impractical and hinder free exercise of religion
18. Controversy over establishment clause focused on role of religion in education
a. Public aid to religious schools
b. Religious involvement in public ones (mainly school prayer)
SOME SUPREME COURT CASES
EVERSON V. BOARD OF EDUCATION, 1947 ($ FOR TRANSPORTATION)
19. Example of public aid to religious schools
20. Upheld N.J. law providing tax money to reimburse parents for transportation of children to school, including to religious schools
a. But isn’t it okay for state to provide buses only for children going to public schools?
b. But not okay to provide buses only to people going to non-religious schools, whether public or private?
21. Justice Black’s majority opinion
a. Neither state or federal government can set up a church or pass laws which aid one religion or all religions
b. Can’t force a person to go to or remain away from church or profess a belief or disbelief in any religion
c. Can’t be punished for rel belief or disbelief or going to church or not
d. No taxes used to support religion
e. Can’t exclude individuals of any faith or lack of faith, because of these beliefs, from getting benefits of public welfare legislation
i. Church gets fire protection
f. 1st amendment does not require state to be adversaries of religious institutions by handicapping them
i. Cutting churches from police protection, sewage disposal, public highways and sidewalks.
22. Rutledge dissent:
a. 1st amendment aims to “forbid every form of public aid or support for religion;” absolute prohibition
b. Providing money to parents for transportation costs of sending their kids to religious school uses tax power to support religion
c. If pay for transportation costs, why not pay for textbooks, school lunches, athletic equipment, writing and other materials?
d. No rational line can be drawn between these and transportation costs
e. He’s not unsympathetic to the burden constitutional separation puts on parents who desire a religious education for their children
f. Claims transportation costs are different from police/fire protection or access to highways, for they are a matter of common right
23. Arthur’s analysis
a. Both agree that fire/police/sewer, roads for religious institutions don’t breach wall of separation
b. How draw line?
i. Books/teacher salaries not okay
iii. Fire/police protection is okay?
c. Later decisions disallowed
i. Lending religious schools instructional materials
ii. Providing them with remedial reading instructors
iii. State tuition grants for children go to religious schools
d. Later decisions allowed
i. Reimbursement for costs of administering state mandated tests and record keeping requirements
ii. State tax deductions for expenses of parents who send kids to religious schools
iii. State tax money to pay for construction at religious colleges, but required those buildings never be used for worship or other religious purposes.
24. Symbolism important: Distinction between Supreme Court cases look arbitrary, but are not (or is less so) if not just look at economic impact but also at symbolism: perceived support of religion by government
a. Subjective symbolic (appearance) component as well as objective one
i. How will the help be perceived?
b. Avoid image of official endorsement
i. Tuition grants for parents much stronger symbolic endorsement of religion than
ii. Reimbursing schools for costs of record keeping required by state.
25. Discussion of vouchers that can be used by parents to send children to religious schools
a. Since court rejected tuition grants to parents, would seem it would reject this
b. Threaten public education?
c. Why is it bad to replace relatively homogenous public schools with more diverse private ones
i. And even if so, why court decide this and not elected officials
d. Public education serves to provide basic education and common culture
i. But ideal of neutrality questions this rationale for pubic education
ii. Why should government be allowed to smooth out differences among groups?
iii. Homogenizing view of education seems contrary to spirit of neutrality
e. Vouchers bad symbolically in terms of establishment of religion?
i. No, as atheists would be free to set up their schools that reflect their views just as religious people could
ii. Still symbolic value might be perceived differently
26. Much more controversy and anger at ban on state supported prayer in public schools than school aid cases.
27. ENGEL V. VITALE 1962 (1ST SCHOOL PRAYER DECISION)
i. Struck down NY state law requiring teachers to read a prayer to their classes each morning
ii. “Almighty God, we acknowledge our dependence upon Thee and beg thy blessings on us, parents, teachers and country”
b. Billly Graham: “God pity our country when we can no longer appeal to God for help”
c. Former Presidents Hoover and Eisenhower expressed shock
d. One representative: “they put Negroes in to the schools and now they have driven God out of them”
e. Another called it “communistic”
f. Cardinal Spellman: 1962
i. “Shocked and frightened that Supreme Court declared unconstitutional simple and voluntary declaration of belief in God by public school children
ii. An attack on a long-standing Godly tradition under which American Children have been raised
28. ABINGTON SCHOOL DISTRICT V. SCHEMPP 1963
a. Court rejected school board’s claim religious instruction acceptable in public schools because of secular, ethical purposes it serves.
i. To promote moral values and contest materialistic trends of our times, and teaching of literature
b. Ten verses from Bible read w/o comment each day; students excused if note from parent or guardian; Unitarian and atheist parents sued
c. Atheists right to determine for themselves which way of life to pursue can’t be ignored in name of promoting moral virtue
d. Religion may be useful in moral teaching, but not essential
29. Two criteria/tests to be consistent with establishment clause
a. Must have a secular purpose
i. Although original purpose of Sunday closing laws was religious (to get people to go to church), they now serve a secular purpose–providing a uniform day of rest
b. Primary effect must be neither to advance nor inhibit religion
30. Court has shown a notable willingness to allow governmental activities that support religion (outside of context of education)
31. MARSH V. CHAMBERS, 1983
a. Upheld Nebraska State legislature’s practice of opening each day’s proceedings with a prayer and even paying Chaplain by the state.
b. Brennan argued against:
i. Force legislators either to participate or make a public statement by their refusal
ii. Indirectly force voters to support an exercise that may be contrary to their beliefs
32. PAWTUCKET CRECHE
33. Lynch v. Donnellly 1984
a. Does a City’s Christmas display of birth of Jesus in a manger establish religion in violation of 1st amendment?
34. Majority argued public display of creche did not violate establishment
a. No absolute wall that mechanically invalidates all government conferral of benefits or special recognition of religion
b. Does it “excessively entangles governed with religion”
c. Secular purpose is to celebrate the holiday
d. It no more supports religion than does helping to pay for public transportation of students going to religious schools
35. Brennan dissent
a. Creche neither served a secular purpose nor had a secular effect
b. Maintenance and display at public expense a symbol that is distinctively sectarian is inconsistent with previous cases and establishment clause
c. It puts government’s approval on particular religious beliefs exemplified in the creche
d. Effect on folks with other religions or who reject all religions is to say their views not worth of public recognition or entitled to public support
e. Government recognizing Christmas day as public holiday accommodates fact that many Americans will expect to spending time vising with families, attending religious services on that day
f. But for Government to endorse distinctively religious elements of this day is to encroach on 1st amendment.
g. What if the symbol was Star of David? Or a Muslim religious symbol?
36. Brennan’s three principles of acceptable (narrow) integration church and state
a. One: Government can accommodate to some extent individuals desires to practice their religion
i. Justify making Christmas a public holiday
b. Two: An earlier religious practice that has now become secular may be continued by government: Thanksgiving is now secular and patriotic, and not religious like it used to be
c. Three: Government can’t be completely prohibited from recognizing in its public actions religious beliefs of Americans as part of national history and culture
i. In God we Trust as national motto
ii. Reference to God in pledge
iii. Protected from violating establishment clause because lost significant religious content via rote repetition