The First Amendment in the Bill of Rights of our Constitution states:
"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
The framers designed this amendment to guarantee religious freedom,
understanding as do most church officials today, that once government
becomes involved with religion and acquires the power to promote
religious beliefs, it also acquires the power to suppress them. The
framers included a clause prohibiting government support or
endorsement of religion out of conviction that the way to ensure
religious freedom was to separate the church from the state so that
government could not interfere with religious views and practices. In
addition to the First Amendment, Article VI of the Constitution
enforces separation by specifying that members of Congress may be
sworn into office with either a religious "Oath" or a non-religious
"Affirmation," and that "no religious test" can be imposed on
candidates for public office. Separation of church and state has
become a mainstay of our democracy, largely sparing us from the
religious strife that has torn and still tears other societies
asunder. And separation has worked well, protecting the rights of
those whose religious views are not the majority's, as well as the
rights of those who are not religious. Separation has also protected
religious organizations from government interference and influence.
Nevertheless, the principle of separation has been regularly tested.
In early America, even after church establishment ended, some state
legislators sought to revive the compulsory taxation of citizens to
support religious institutions. In this century, public schools were
once required to teach the biblical version of the earth's and
humanity's creation, while the scientific theory of evolution was
prohibited. Throughout our history, sectarian advocates have tried to
inject religious exercises such as daily prayer, into the public
schools. At times, religious minorities, including members of
"cults," have been discriminated against because of their beliefs.
And today, citizens in many communities disagree about whether a
model of the infant Jesus in the manger, which officially promotes
certain religious beliefs over others, should be displayed on the
steps of City Hall. The courts must frequently consider where to draw
the line that separates church and state.
Religious freedom is one of our most important traditions and
constitutional rights. The courts, Congress, and state and local
legislatures must stand guard against proposals that would undermine
the principle of separation, which protects that freedom. Over the
years, the ACLU has earned a reputation as the nation's foremost
protector of the rights of individuals to practice their religion, as
well as the chief opponent of both state aid to religion and
enforcement of any religious belief by law. We support the separation
of church and state for the same reason the founders of our country
did: to promote and protect religious freedom by keeping the
government out. Here are the ACLU's answers to some questions
frequently asked by the public about church/state issues.
* Were people free to practice their religious beliefs in colonial
Religious conflict and persecution pervaded early America, even
though most of the settlers had fled England to escape from religious
intolerance there. For example, the Puritans established the
Massachusetts Bay Colony as a theocratic state in which Catholics,
Quakers and others were regarded as heretics and subject to the death
penalty. In turn, the Catholics who founded Maryland persecuted
Protestants and even some Catholics who professed their faith in
unconventional ways. On the other hand, the Baptists of Providence,
Rhode Island believed that all religions should be allowed to
flourish. Gradually church-state separation came to be seen as the
key to ending the destructive religious warfare and ensuring
religious freedom for all.
* Does the phrase "separation of church and state" actually appear
in the constitution?
No. The phrase "separation of powers," which describes the division
of the government into executive, legislative and judicial branches,
does not appear either -- nor do "the right to travel" and "freedom
of association." Yet all of these principles are implicit in the
Constitution and have been recognized by the courts.
* Our nation was founded by religious individuals, and some
manifestations of the religious aspects of our history and culture
are inevitable. So what does separation mean exactly?
In a major 1947 decision, in the New Jersey case of _Everson v. Board
of Education_, the U.S. Supreme Court permitted states to bus
children to religious day schools just as the state provides police
and fire-fighting services. But in the same decision the Court
adopted Thomas Jefferson's view that the Establishment Clause was
intended to erect "a wall of separation between church and state" and
set forth the following "_Everson_ principles": Neither the state nor
the federal government can "set up a church"; pass laws that aid one
religion, all religions, or favor one religion over another; force a
person to attend or stay away from church or believe in any religion;
punish a person for holding or professing religious beliefs; levy a
tax, in any amount, to support any religious activities or
institutions; or openly or secretly participate in the affairs of any
religious organization or vice versa.
* Is prayer in public schools constitutional if it is optional?
Officially-sponsored school prayer violates several of the
constitutional requirements cited above. In two major cases decided
in 1962 and 1963, the Supreme Court held that public schools, being
government institutions, cannot write prayers for schoolchildren or
sponsor praying, Bible readings, or religious observances of any kind
in schools. Allowing students not to participate in such activities,
said the Court, is not sufficient because the First Amendment bars
the government from sponsoring or promoting religious beliefs and
practices. Some state legislatures, in order to circumvent the
Court's rulings, have instituted silent prayer by mandating a "moment
of silence" in the schools. In those cases, the Court has held that
the legislative intent and effect of such "moment of silence" laws
are religious and, therefore, unconstitutional.
* Can children pray in school at all?
Of course. Any child can pray on the school grounds so long as the
prayer is a private exercise, such as a prayer before meals or
reading the Bible between classes. However, school officials cannot
be involved in sponsoring religious exercise by setting the time or
place of these observances.
* Why can't schools be required by law to teach the biblical theory
of the earth's origins-- "creationism"--in addition to teaching
"Creationism" is a religious dogma that, unlike scientific theories,
is not subject to scientific verification or revision based on new
data. In a 1987 decision striking down a Louisiana law that forbade
the teaching of evolution unless instruction in "creationism" was
also offered, the Supreme Court held that such "balanced treatment"
mandates are really designed to promote particular religious
doctrines and are, therefore, unconstitutional. Of course, nothing
prevents a school from teaching about various creation-of-the- world
beliefs in a comparative religion course, which would be
constitutional as long as the instruction imparts information about
different religious traditions without promoting any religion.
* If students can meet on school grounds in extra-curricular
political or social groups, can't they also meet in religious groups?
They can, but religious groups are not just like any other groups in
the public school setting. The message of the Establishment Clause is
that religious activities must be treated differently from other
activities to ensure against governmental support for religion. The
state's compulsory school attendance laws are responsible for the
presence of students in school buildings and should not provide an
opportunity for government-approved religious activity. Such activity
can easily occur in schools where there is official encouragement of
religious proselytizing, which can become coercive.
* Since religious day schools are educating the children of
taxpayers, can't the government assist those schools?
All citizens are obliged to pay taxes, which government then uses to
provide police, fire-fighting, educational and other services for the
general good. The government cannot interfere with an individual's
right to choose a private religious alternative to a public service,
such as parents choosing to send their children to religious day
schools. But government may not subsidize that choice, such as
providing vouchers or tax credits to parents whose children attend
religious day schools, because that would give tax money directly to
religious organizations in violation of the Constitution. Communities
can, however, provide hot lunches and health services, which are not
part of the educational process to all children regardless of the
schools they attend.
* Religious facilities sometimes house services like daycare and
foster care for the general public. Is it constitutional for those
programs to receive government funds?
The ACLU believes that government funding of public child care
programs located in religious institutions is constitutional only if
the following conditions are met: 1) The program must be supervised
and run by a non-religious group; 2) the nonreligious group must hire
staff who have no association with the religious facility housing the
program; 3) the program must have no religious content; 4) no
religious symbols can be displayed in the vicinity of the program; 5)
the program must admit children on a non-discriminatory basis,
without regard to their religion, and 6) the government can pay only
rent to the religious facility.
* Why does the ACLU oppose religious displays on public property
during the Christmas season?
Private citizens or private businesses are fully entitled to
commemorate holidays with religious displays, but when an agency of
government erects displays that symbolize Christian and/or other
religions, it is, in effect, endorsing the particular religions. In
two ACLU cases decided in 1989, the Supreme Court ruled that a
nativity scene displayed inside a Pennsylvania county courthouse
violated the Establishment Clause, but that a Hanukkah menorah
displayed outside another government building in the state was
acceptable because the "context" of the display was secular in that
it included other, non-religious symbols. The latter ruling echoed
the court's acceptance in a 1984 case, of religious displays on
public property as long as secular symbols like Santa Claus and his
reindeer are part of the display and its overall intent is secular.
The ACLU disagrees with these decisions. We believe that the place
for religious displays, as with religious events and practices, is in
the private sector -- the home, the religious day school, or each
person's place of worship. Moreover, spirituality is undermined and
religious symbols are trivialized when they are secularized in order
to permit government endorsement.
* If the government cannot be involved with religion, does that mean
the clergy cannot speak out on political issues?
No. They _can_ speak out and, indeed, many members of the clergy
believe they have an obligation to do so. While it is true that the
Establishment Clause dictates government neutrality on religious
matters, requiring religious leaders to remain neutral on public
affairs would violate their First Amendment rights of free speech and
free exercise of religion. In a 1978 case supported by the ACLU, the
Supreme Court struck down a provision of Tennessee's constitution
that prohibited ministers from serving as legislators or as delegates
to the state's constitutional convention.
* Should the Catholic Church lose its tax exempt status because its
officials are involved in lobbying against abortion and birth
No. The ACLU believes that clergy of any denomination who express
their views on political and social issues are exercising their
* Are members of religious "cults" also protected by the
Yes. Frequently, the disparaging label "cult" is attached to small,
non-traditional religious groups. However, freedom of religion must
be extended to all kinds of religious groups without regard to their
popularity or longevity. The "free exercise" guarantee means that any
religious claim may be expressed while, at the same time, the public
is afforded the opportunity to accept or reject the message. The ACLU
opposes so-called "deprogramming" whereby state officials or private
individuals forcibly remove adults from groups alleged to be "cults"
and subject them to "re-education" so that they will repudiate the
groups' beliefs. Obviously, if specific charges of criminal conduct
are made against a religious group, a constitutionally appropriate
investigation and prosecution should take place.
* Can individuals whose religious beliefs conflict with certain laws
receive special consideration from government?
According to the Selective Training and Service Act (the draft law),
people who can show that they object to participating in all wars "by
reason of religious training and belief"--conscientious objectors--
are entitled to exemption from the military service required by that
law. However, such exemption has not been recognized as a
constitutional right. Moreover, during World War II, many men
claiming conscientious objection were imprisoned when they sought
exemption from army service due to legal controversy around the
meaning of the term "religious." The ACLU believes that people should
qualify as conscientious objectors if, on principle, they oppose all
wars or even if they only oppose a particular war, whether the basis
of their views is moral, humanitarian or religious.
The American Civil Liberties Union
132 West 43rd Street
New York, N.Y. 10036
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