Religion in U.S. Domestic Policy: Church-State Separation & Freedom, Exams of Religion

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RELIGION IN

UNITED STATES

DOMESTIC POLICY

FINAL R EPORT FOR EDGE297A

Fall Quarter 2003

Scott D. Kulchycki

Roger Wang

Scott Kulchycki and Roger Wang

Posted at http://www.freerepublic.com/forum/a38eb4d4a07c6.htm

Scott Kulchycki and Roger Wang

intermixing of church and state affairs within the U.S. threatens the political and social health of the nation. This report first reviews the history of U.S. law regarding separation of church and state and freedom of religion, starting from the Constitution and continuing through relevant Supreme Court cases in U.S. history. The discussion then briefly reviews the recent church-state issues of religion in schools, the Pledge of Allegiance, and the public display of the Ten Commandments. The focus of the paper then shifts to examining actions of the current administration and the Christian Right in the U.S. regarding church- state relations. A detailed overview of the new Faith-Based Initiative is discussed as an illustrative example of recent government and religion collaboration; while a review of Christian activist groups, their leaders, and Christianity within the Bush administration describes the strength and influence of the Christian Right in U.S. politics. Finally, the report summarizes public opinion regarding church-state issues, referring to recent polls and surveys. This report concludes with two conflicting arguments based on the information contained herein. One author argues that a healthy separation of church and state derives not from an external, absolute standard, but from the U.S. Constitution (which defines the government) and the American people (who elect the government). The other author argues that complete and absolute separation of church and state is necessary for a healthy democracy.

RELIGIOUS FREEDOM AND S EPARATION OF CHURCH AND S TATE IN UNITED

S TATES L AW

Starting directly with the United States Constitution, the only explicit reference to religion in the original document is in the last line of Article VI [ 4 ]:

“The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.”

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Article VI guarantees that any citizen seeking public office in the U.S. is not subject to a religious test as a qualification procedure. At the time of the Revolution, all thirteen states had religious tests for public offices, which were reserved primarily for Protestants; and at the time of the Constitutional Convention, Jews, Catholics, Unitarians, agnostics, freethinkers, and atheists were barred from holding public office in all thirteen states and could not even serve on juries in most states [ 5 ]. Thus, Article VI officially presented a clause implying a level of church-state separation. James Madison, a key founding father, believed that the wording of Article VI combined with the concept of religious freedom already implied within the Constitution made an explicit statement on religious freedom superfluous [ 6 ]. Given the context of the time period, the inclusion of Article VI in the Constitution represented a movement towards religious neutralism of the state. Most states matched the language of Article VI in their respective constitutions, however North Carolina and New Hampshire retained religious tests for public office until 1868 and 1946 respectively [ 7 ]. Even with Article VI, the ratification of the Constitution among the thirteen states was made only under a promise of a Bill of Rights. For example, ratification in Virginia came as a trade for the inclusion of a Bill of Rights, with a specific provision for religious liberty [ 8 ]. In fact, George Mason, who had written the Virginia Declaration of Rights and served as a delegate to the Constitutional Convention representing Virginia, strongly opposed the Constitution because “It has no declaration of rights.” [ 9] As a result, not long after the Constitution officially achieved ratification in the summer of 1788, the House and Senate proposed and passed a Bill of Rights by September 1789. By 1791, the Bill of Rights became an official part of the Constitution as the first ten amendments. Freedom of religion appears in the first line of the First Amendment, which reads [ 10 ]:

“Congress shall make no law respecting an 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.”

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First Amendment only addresses the role of Congress (state), Jefferson’s “…wall, by contrast, is a bilateral barrier, a structure of unambiguous demarcation that inhibits the movement of traffic from one side to the other.”[ 14 ] A wall of separation works in both directions—it ensures the religious liberties of the people and religious groups above state action, and also prevents meddling of religion in government policy. In several cases, the Supreme Court adopts Jefferson’s “wall of separation” in interpreting the First Amendment. Examples include Chief Justice Morrison Waite in Reynolds v. United States (1879) stating, “[Mr. Jefferson’s reply to the Danbury Baptist Association] may be accepted almost as an authoritative declaration of the scope and effect of the [first] amendment thus secured.”[ 15 ]; and Justice Hugo L. Black in Everson v. Board of Education (1947) stating, “In the words of Jefferson, the [First Amendment] clause against the establishment of religion by law was intended to erect ‘a wall of separation between church and state.’…That wall must be kept high and impregnable.” [ 16 ] However, the Supreme Court only addresses issues as they arise in selected court cases at specific times in history. Thus, the ever-changing political and social environment (and Supreme Court Justices) results in varying interpretations of separation of church and state implied by the First Amendment. An alternative interpretation to Jefferson’s famous “wall” appears in James Madison’s letter to Reverend Jasper Adams in 1833. Reverend Adams had asked about the relationship between Christianity and the federal government, and Madison’s reply contained a key reference to separation of church and state [ 17 ]:

“I must admit, moreover, that it may not be easy in every possible case, to trace the line of separation, between the rights of Religion and the Civil authority, with such distinctness, as to avoid collisions and doubts on unessential points. The tendency to a usurpation on one side, or the other, or to a corrupting coalition or alliance between them, will be best guarded against by an entire abstinence of the Government from interference, in any way whatever, beyond the necessity of preserving public order, and protecting each sect against trespasses on its legal rights by others. ”

While Madison remains in strong support of separation of church and state, he introduces an alternative to Jefferson’s “wall” in the form of a “line of separation”. Metaphorically, a line is less of a strict barrier than a wall, and perhaps can be adjusted or even crossed.

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The Supreme Court, as with Jefferson’s wall, has also referred to a “line of separation” in several cases involving religious liberties. Examples include Justice William Brennan in Abington School District v. Schempp (1963) stating, “…the line which separates the secular from the sectarian in American life is elusive.” [ 18 ]; Justice Byron White in Board of Education v. Allen (1968) stating, “ Everson and later cases have shown that the line between state neutrality to religion and state support of religion is not easy to locate.” [ 19 ]; and Chief Justice Warren Burger in Lemon v. Kurtzman (1971) stating, “In the absence of precisely stated constitutional prohibitions, we must draw lines.” [ 20 ] Jefferson’s wall and Madison’s line provide two approaches among several possible interpretations facing the issue of freedom of religion and separation of church and state. Yet ultimately the Supreme Court determines the meaning, purpose, and direction of United States law; and through several important decisions, the Court established precedents that continue to shape U.S. policy on the relationship between church, state, and religious freedom.

S ELECTED S UPREME COURT D ECISIONS REGARDING RELIGIOUS FREEDOM

AND CHURCH-S TATE RELATIONS

While there have been several court cases that either directly or indirectly relate to freedom of religion and separation of church and state, this section examines a representative sample which helps illustrate the development of the Supreme Court’s (and therefore the government’s) approach to religion based issues. Knowledge of previous Court decisions aids in developing a framework to analyze the issues concerning the government-religion relationship that continue to exist today. Reynolds v. United States (1878) was a highly significant case where the Court commented directly on separation of church and state, referencing Jefferson’s wall (see previous section), and provided a framework for interpreting the First Amendment’s protection of an individual from the government. In the Morrill Act of 1862, Congress made plural marriages illegal in any U.S. territory under its jurisdiction [ 21 ]. Mormons

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institution. Mainly, the government could give funds to an institution run by religious people, as long as the funds were directed towards a secular purpose. Cochran v. Louisiana Board of Education (1930) addressed a Louisiana state law that used public taxpayer money to provide textbooks to private parochial schools. Citing the idea of “child benefit,” the Supreme Court upheld the law, saying that the state funds were not directed towards religion, but towards the education and growth of the schools’ children. The child benefit theory would remain a significant and controversial concept in decisions involving government funds given to children through religious institutions. The Court called upon similar reasoning in Board of Education v. Allen (1968). New York passed a law that would provide textbooks to all children in grades seven through twelve in all schools, public and private. The Court upheld the law saying that the money provided by the state was for a secular purpose and thus did not violate the establishment clause of the First Amendment. Justice Byron R. White in the majority opinion stated that the program benefited the children who borrowed and used the books, which still technically belonged to the state. “Thus, no funds or books are furnished to parochial schools and the financial benefit is to parents and children, not to schools.” [ 25 ] Even in recent times, such as in Mitchell v. Helms (2000), the Supreme Court continues to uphold state funded programs which provide schools (public or private, including parochial) funds for educational functions and supplies to children. In a related issue, in Zelmon v. Simmons-Harris (2002), the Court upheld an Ohio program that provides tuition aid in the form of vouchers to parents, who may choose where their children attend school. Cantwell v. Connecticut (1940) was an important case where the Supreme Court utilized the Fourteenth Amendment as an extension of the First Amendment. Jesse Cantwell, a member of the Jehovah’s Witnesses, played a record for pedestrians on the streets of New Haven that openly criticized other religions, particularly Roman Catholicism. Cantwell was arrested and convicted for disturbing the peace, but the Supreme Court overturned the conviction claiming the arrest violated the individual’s right to free exercise of religion. Justice Owen J. Roberts in the majority opinion stated, “Such a censorship of religion as the means of determining its right to survive is a denial of liberty protected by the First Amendment and included in the liberty which is within the protection of the Fourteenth.” [ 26 ] Thus, the Fourteenth Amendment held each state

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(here Connecticut) answerable to the First Amendment guarantees. Thereafter, the Supreme Court would continue to use the “Fourteenth for the First” doctrine on many occasions [ 27 ]. Minersville School District v. Gobitis (1940) was another case involving Jehovah’s Witnesses. The children of Walter Gobitis, a Jehovah’s Witness, refused to salute the American flag and would not recite the pledge of allegiance for religious reasons. As a result, the children were expelled. Gobitis appealed to the federal courts, but the Supreme Court upheld the expulsion, stating that a general law aimed for a secular purpose (national unity in this case) should be obeyed regardless of religious beliefs. The Court also mentioned that the school did not force the children away from their religious beliefs, because ultimately, their parents would have a greater influence [ 28 ]. However, in West Virginia State Board of Education v. Barnette (1943), the Court reversed the Gobitis decision, referring to the free speech clause of the First Amendment rather than the free exercise of religion clause. The opinion in this case was that a citizen could not be coerced to participate in a particular event or act. Everson v. Board of Education (1947) was a landmark case dealing with the highly controversial issue of government subsidies to religious institutions. A New Jersey law provided rebates for children on bus tickets purchased for transportation to their schools. The rebates had been extended to children attending parochial schools as well as public schools. The question arose on whether the rebates represented the government respecting the establishment of a religion. In a close 5-4 decision, the Court upheld the law, stating that the primary purpose of the program was to aid transportation of the children for their own safety. While the Court maintained that the case did not directly involve school aid, the majority opinion by Justice Hugo L. Black addressed the issue of separation of church and state with regard to government funds and the First Amendment’s reaches. Justice Black’s statement provided a definitive statement on church-state relations, interpreting the purpose and meaning of the First (and Fourteenth) Amendment [ 29 ]:

“The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all

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Supreme Court, the Court held the prayer unconstitutional under the establishment clause of the First Amendment. The prayer was more than a program of moral instruction, it was an act of religion. The Court viewed that initiating and encouraging a prescribed school prayer constituted establishment of religion by the state. Abington School District v. Schemmp (1963) continued on the idea of religious leaning programs in schools, this time regarding Bible readings in public schools. Here, the Supreme Court struck down a Pennsylvania law requiring a daily Bible reading, without comment, to begin the school day. Note the Supreme Court decided on the same issue in Murray v. Curlett (1963) at the same time, striking down a Baltimore school regulation that included a Bible reading to begin the school day. In both cases, the laws requiring Bible reading were found to violate the establishment clause of the First Amendment (via the Fourteenth Amendment). Lemon v. Kurtzman (1971), Early v. DiCenso (1971), and Robinson v. DiCenso (1971) all involved state subsidies directed towards private schools, which included parochial schools. For Lemon , Pennsylvania had passed a law that would provide aid to private schools by paying teacher salaries and helping to supply textbooks. For the DiCenso cases, the state of Rhode Island instituted a program that paid 15% of teachers’ salaries in private schools. The Supreme Court ruled both laws unconstitutional under the establishment clause of the First Amendment. Writing the decision, Chief Justice Warren Burger established what has become known as the Lemon Test when assessing legislation: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances or inhibits religion; finally, the statute must not foster an excessive government entanglement with religion.” [ 32 ] The Court stated that the Pennsylvania and Rhode Island laws violated the third requirement. Stone v. Graham (1980) involved a Kentucky state law that called for the posting of the Ten Commandments in every public classroom. The Supreme Court, in a narrow 5-4 decision, found the law unconstitutional, violating the establishment clause. According to the Court, the law failed the first part of the Lemon test. The Ten Commandments were of a religious nature and extended well beyond secular lessons (e.g. stealing, murder, etc.) with direct references to God and Sabbath.

Scott Kulchycki and Roger Wang Marsh v. Chambers (1983) was an intriguing decision involving the establishment clause where the Supreme Court, in a 6-3 decision, upheld the chaplainry practice before a session of a legislative body. The chaplainry practice is an offer of prayer at the beginning of a legislative session led by a chaplain paid by public funds. Contrary to previous decisions concerning the establishment clause, the Court did not apply the Lemon test and upheld the practice under the idea of historical custom. Prayers led by chaplains paid with tax dollars could be traced back to the First Continental Congress and the First Congress. Thus, the call for prayer under these circumstances did not violate the establishment clause and simply respected an old custom that had become part of American heritage. In Agostini v. Felton (1997) the Court reversed an earlier decision in Aguilar v. Felton (1985) that had prevented public school teachers from teaching or tutoring in parochial schools. Under the old decision, any state supported tutoring program had to occur in public schools or in mobile units outside parochial schools, which amounted to heavy overhead and transportation costs. In the 1997 decision, the Court reversed its earlier decision and permitted public school teachers to tutor private school students at their private schools.

RELIGION IN S CHOOLS AND THE PLEDGE OF ALLEGIANCE

The Supreme Court has ruled in several cases involving religion in schools. In general, the Court has struck down religious teaching on public school grounds, posting of outright religious materials in classrooms, publicly funded and organized religious activities in the classroom (e.g. bible reading, prayer), and has set up the Lemon test to ensure that any religious initiated action has a clear secular purpose. Also, according to the Court, secular purpose, public health, and child benefit allow religious groups to work with and accept financial support from the state. For example, the Court has consistently upheld programs giving public aid to all schools (including parochial) where the students are the prime beneficiaries.

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Senator Kit Bond (R-Missouri) commented colorfully, “Our Founding Fathers must be spinning in their graves. This is the worst kind of political correctness run amok. What's next? Will the courts now strip ‘so help me God’ from the pledge taken by new presidents?”[ 37 ] Both Republicans and Democrats described the ruling as “stupid,” “outrageous,” and “nuts,”; and President Bush thought the decision was “ridiculous” [ 37 ]. In October 2003, the Supreme Court decided to accept and review the Pledge of Allegiance case. A final decision, expected by June 2004, will determine whether the Pledge of Allegiance represents a form of public prayer, instead of a strict patriotic oath. Justice Antonin Scalia, whose bias Newdow had challenged based on Scalia’s remarks at a Religious Freedom Day rally in January 2003, will not take part in the decision leaving the possibility of a 4-4 split. A tie vote would result in a ban of the Pledge in the schools under the 9th^ Circuit’s jurisdiction, which could potentially apply to the entire U.S. [ 38 ] For reference, a poll by the First Amendment Center and the American Journalism Review released in August 2003 revealed that [ 3 ]:

• 68 % of adults believed inclusion of “under God” in the Pledge of Allegiance does not violate separation of church and state.
• 26 % believed that the phrase violated separation of church and state.
• 76 % of respondents said the phrase “under God” is “primarily a statement related to the American political tradition.”
• 18 % said it was primarily a religious statement. (based on survey of 1000 Americans between June 13-15. Margin of Error ~ 3.1%)

TEN COMMANDMENTS IN C OURTHOUSES

Public display of the Ten Commandments remains an issue of continual debate, and has returned recently to the media spotlight. In July 2001, Alabama State Chief Justice Roy Moore secretly moved a 5280 pound monument of the Ten Commandments into the Alabama Judicial Building in the middle of the night [ 39 ]. Alabama attorneys

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and three national civil rights groups sued Moore claiming the monument violated the establishment clause of the First Amendment. In 2002, a federal district court, under Judge Myra Thompson, ruled against Moore ( Moore v. Glasroth ) and ordered the monument’s removal. In July 2003, the 11 th^ Circuit Court of Appeals unanimously upheld the district court’s decision and set a deadline for removal in August 2003. The case attracted significant media attention when Moore refused to obey the court order and his supporters crowded the steps of the Alabama building as well as the steps of the U.S. Supreme Court. Moore was suspended for refusing to obey the court order. The article entitled, “In God I Trust: Why I'm standing up for the Ten Commandments in Alabama,” by Roy Moore appears on several websites and other written media [ 40 ]. In this article, Moore claims that the Ten Commandments are the foundation of the judiciary process and law, and that “The Alabama Constitution specifically invokes ‘the favor and guidance of Almighty God’ as the basis for our laws and justice system.” [ 41 ] In several strong statements, Moore speaks out against the direction and practices the nation has adopted regarding church-state issues:

“For half a century the fanciful tailors of revisionist jurisprudence have been working to strip the public sector naked of every vestige of God and morality. They have done so based on fake readings and inconsistent applications of the First Amendment. They have said it is all right for the U.S. Supreme Court to publicly place the Ten Commandments on its walls, for Congress to open in prayer and for state capitols to have chaplains--as long as the words and ideas communicated by such do not really mean what they purport to communicate. They have trotted out before the public using words never mentioned in the U.S. Constitution, like "separation of church and state," to advocate, not the legitimate jurisdictional separation between the church and state, but the illegitimate separation of God and state.”

Finally, Moore concludes that as the Chief Justice of the Alabama Supreme Court, by oath he must uphold the laws of Alabama, which refer to the Almighty God. Moore closes by questioning the jurisdiction of the federal district court over the decisions of Alabama and its people based on the sovereignty guaranteed to the people and states by the Ninth and Tenth Amendments [ 41 ]. Moore appealed to the U.S. Supreme Court, which refused to hear the case. Previously, the Supreme Court had narrowly struck down a law posting the Ten

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of utmost importance in both his private and public life [ 44 ]. Largely because of this experience, Bush became a firm believer in the power of religion and faith to change and better peoples’ lives, a belief that has culminated in his faith-based initiative. Bush believes that less fortunate citizens require not only economic assistance, such as job training, welfare aid, and food programs, but also religious assistance--social programs must provide hope in addition to material survival goods. This “compassionate conservatism” implies that social services must emphasize personal responsibility and bring about moral change among the poor to have a lasting effect [ 44 ]. Though able to provide economically, Bush noted that government and secular agencies were unable to provide for the spiritual needs of their clients and thus were incomplete social providers. He felt that current social services focused only on financial assistance inevitably led to immoral behavior, noting that teen pregnancy and illegitimacy were made economically viable through welfare [ 44 ]. Bush believed that citizens and their churches were better aligned with the needs of their community and were thus better suited to providing social assistance [ 44 ]. Therefore, Bush sought to create a triangle of social networks involving the government, religious organizations, and secular charities to provide more complete social care. With the belief that the government acting alone could not provide sufficient care to the poor, Bush began creating government partnerships with religious charities while governor of Texas in the 1990s. Under such arrangements, a religious group provides social services with funding assistance from the state. In Texas, two such programs were the Innerchange Freedom Initiative (IFI) and the Teen Challenge program. IFI is a prison bible study program created to reduce recidivism among participating inmates and will be discussed in detail as an illustrative example at the end of this section. The Teen Challenge program was designed to prevent drug and alcohol abuse through conversion to Christianity [ 45 ]. These programs tended to create collaboration rather than separation among church and state [ 44 ]. During the 2000 presidential election, government-funded religious social service programs were an integral component of Bush’s platform [ 44 ]. He argued that religious groups should be allowed to compete fairly with secular charities for federal funding of social service providers and created the Faith-Based Initiative program. Indeed, a recent

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Pew poll indicates that 73% of Americans believe faith-based funding is a good idea though at least that many fear such programs will result in inappropriate church-state relations [ 46 ]. The following sections investigate the formation of the faith-based initiative and its potential strengths and weaknesses.

Legal History of the Faith Based Initiative

Prior to 1996, charities affiliated with religious organizations had received substantial federal funding; such charities included the Salvation Army, Catholic Charities, and Jewish Family Services. However, these organizations were incorporated separately from their parent religion and thus provided the government with budgets detailing the use of the federal funds distinct from the religious organizations’ activities budget. Furthermore, these charities were bound by the Civil Rights Act of 1964, forbidding them from personnel discrimination based on religious or sexual identity. The religious affiliates could not use government funding to directly or indirectly convert their clients nor could they deny service to potential clients on religious bases [ 44 ]. The welfare reforms of 1996 introduced the Charitable Choice provision [ 44 ]. The principles of this provision dictated that religious charities should be able to compete fairly with secular charities for federal funding, without federal discrimination among religions; that the religious charities shall retain their religious identity in governing boards and hiring practices; that clients must not be refused service based on their religious beliefs and that clients must have access to a non-secular service provider if desired; and that no direct government funding can be used for worship or proselytizing [ 47 ]. The significant difference between pre-1996 funding and Charitable Choice was that separate incorporation of the religious charity was no longer necessary. Under the new system, there was no easy means of examining budgets to monitor expenditures and thus no scrutiny to prevent abuse of government funding. Further, by recognizing the independence of the religious groups in providing social services, Charitable Choice allowed the religious providers to avoid Civil Rights hiring rules. Indeed, Charitable Choice seems to be virtually indistinguishable from the faith-based program envisioned by Bush.