U.S. COURT RULINGS ON GENERAL TOPICS RELATED TO THE SEPARATION OF CHURCH & STATE

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Overview

The 1st Amendment to the U.S. Constitution, as interpreted by the courts, guarantees that:

These principles are continuously in a state of creative tension. Many Americans feel that prayer forms part of their religious expression; thus they want their children to pray in public school classrooms, their school board to pray before its meetings, etc. Many non-Christians and secularists are opposed to prayer, particularly if it contains Christian themes. Others feel that a wall of separation must be maintained between religion and the government and its agencies; they regard this factor as outweighing any personal religious consideration.

Summaries will be posted below of important, recent court rulings that impact on the separation of church and state, starting in 1999-MAR. Court decisions involving prayer inside public school buildings are located elsewhere.

Prayers at public school graduation ceremonies

A 1992 decision "Lee v. Weisman" by the U.S. Supreme Court prohibited "prayer, benediction, or invocation at any graduation ceremonies" if they were directly conducted or sponsored by a public school board. However, lower courts have ruled in recent years that some graduation prayers are legal. Some school boards attempted to circumvent the 1992 decision by sponsoring prayers indirectly, by authorizing students to deliver them. More details on this topic.

Prayers at public high school sports events:

Various courts have found that an individual student or group of students are free to pray at school sporting events. However, school officials may not add a prayer to the schedule of a game. More details on this topic.

Prayers before Board of Education meetings:

The 6th U.S. Circuit Court of appeals decided on 1999-MAR-18 that the Board of Education in Cleveland, OH, cannot pray before their meetings. The court ruled that prayers are an illegal endorsement of religion. School board attorneys have not decided whether they will appeal the case to the U.S. Supreme Court. ₁

Displaying the Ten Commandments

Most people's recollection of the Ten Commandments (a.k.a. Decalogue) centers on the "thou shalt not" requirements: to not murder, steal, commit adultery, lie in court, covet the neighbor's slaves or wife, etc. Many feel that these rules are near universal, are followed by adherents of all religions, and are a useful standard to use in life. Thus the posting of the ten commandments may be viewed as an innocuous decision that should offend nobody. They may elevate the readers' spirituality and inspire them to act in a more ethical manner. But the "thou shalt not" element of the Ten Commandments is only part of the picture. There is also a purely theological component that people may overlook: the instruction to not having other Gods before one, not making graven images, not bowing down or serving other Gods. By posting the Ten Commandments, a government or school is in effect telling its citizens and students that the God of the Hebrew Scriptures (Old Testament) is the only valid God, and that the Gods and Goddesses of Buddhism, Hinduism, Sikhism, Wicca and hundreds of other religions are not valid. The implication is that they are inferior deities and, by government decree, not to be worshipped. By posting the ten commandments, the government is making a strong statement against religious tolerance, and is taking a major step towards establishing an official state religion.

The 1^st Amendment of the U.S. Constitution, as interpreted by the U.S. Supreme Court, requires the government to not give preference of one religion over another. Also, they cannot imply that a religiously based life is superior to a secularly based life or vice versa.

In municipal councils: During 1997, the Charleston County Council voted to display the Decalogue by itself in its chambers. Three local residents, with the help of Americans United for Separation of Church and State sued the county. State judge R. Marley Dennis, Jr., ruled in 1999-MAR that the plaque had to be removed. It violated the establishment clause of the first Amendment of the U.S. Constitution because its contents endorsed Judeo-Christianity. The attorney for the county decided to not file an appeal.

In public schools, courts, and government buildings: On 1999-JUN-17, the U.S. House of Representatives voted 248 to 180 to attach a "Ten Commandments Defense Act Amendment" to a juvenile crime bill. If signed into law, it would allow the display of the Ten Commandments in U.S. public schools, courts, and public buildings. The chances of this amendment passing a constitutional challenge in the courts is essentially zero, because it:

We suspect that almost all of the 248 representatives are aware of its unconstitutionality. Most are probably lawyers; almost all would have more than a Grade 10 knowledge of constitutional law. "These 248 congressmen violated their oaths to support the Constitution by voting for a bill that clearly violates the 1st Amendment." ₁₀

On 1999-JUN-18, The Education Secretary issued a statement on this bill, saying: "...the U.S. Supreme Court in 1980 ruled that it is unconstitutional for a state to require posting of the Ten Commandments in public schools...Any student in an American public school today can pray, bring a Bible to school, say grace at lunch or voluntarily participate in 'see you at the flagpole' gatherings. The religious rights of all students -- Christian, non-Christian, and non-believers as well -- are very well protected...Religion is very much alive and well in America's public schools." ₉

On 2005-MAR-01, the U.S. Supreme Court heard oral arguments on two cases involving two displays involving the Ten Commandments.

The court decided that the Kentucky display was unconstitutional, but the Texas monument is constitutional. Both decisions were by a 5 to 4 vote. More details

Religious discrimination case

The Hagerstown Suns are a baseball team in Maryland -- a Class A affiliate of the Toronto Blue Jays. The Suns held a "church bulletin night." Anyone carrying a church newsletter of bulletin were admitted to an 1998-APR-12 Easter Sunday game with a discount on the regular admission fee. Carl Silverman is a local agnostic. He told the ticket clerk that he was "not religious" and was informed that without a church newsletter, he would have to pay the full price of admission. Silverman successfully brought a complaint with the Maryland Commission on Human Relations, claiming that the Suns were a public accommodation. Although the Commission ruled in Silverman's favor, the Suns refused to settle the complaint out of court by paying a token fine and committing to ending the practice of church bulletin nights in the future. Suns General Manager David Blenckstone declared, "We have never required fans to have a religious affiliation to receive our special Sunday discount. We only ask that they provide a church bulletin."   

The Commission issued a Statement of Charges on 1999-MAR-3. Judge Brady of the Administrative Court heard arguments in the case during 1999-JUN and JUL. Supporting the Suns were two conservative Christian legal groups, the Rutherford Institute and the American Center for Law and Justice. The American Civil Liberties Association represented Silverman. The Suns expanded their "Faith based" discount programs; a portion of gate receipts were used to handle the team's legal costs. They have since added halos to the team uniforms.

The judge ruled for the Suns. Her rationale was that Maryland's law prohibited practices that would "deny, refuse, or withhold from" anyone access to a public accommodation. In this instance, Silverman was not refused entry; he was merely charged extra because he was not religious. She also ruled that it was not "an impermissibly heavy burden" for an agnostic to obtain a church bulletin from somewhere in order to get the discount.

There was a conflict in the testimony. Silverman had written down the names of the ticket sellers that he dealt with that night: Kim and Sarah. He was able to identify them at the trial. But a Sun employee, Rico, testified that he was the ticket seller who dealt with Silverman -- and that he had pulled out a spare church bulletin and had told Silverman that he would give him the discount anyway. Rico had held his silence earlier during press coverage of the event and during the investigation by the Commission.

The decision was expected to be appealed. However a settlement was reached through negotiations. The Suns agreed to stop the special "church bulletin" promotion and replace it with a "Sunday Family Bulletin Day." Anyone bringing any publication from "any church, house of worship, civic or nonprofit" group will be admitted at a discount. An attorney for the plaintiff, Michael Berman, saod: "We consider this a total victory for our position.  The Suns have agreed to discontinue the use of 'church bulletin' as the name for any and all promotions...Our position has always been that when a business opens its door to the public, under the public accommodation law that business has to open its door to everyone without discrimination on the basis of religion, race or gender," Berman declared. We believe we have achieved that objective." Dwight Sullivan, an attorney for the ACLU Maryland Office said: "The agreement we've got now is important, especially since the use of the word 'church' suggests a limitation to Christians.  So, the description will no longer exclude minority religions, and equally important it doesn't discriminate against atheists or agnostics since it's no longer restricted to religious bulletins."

Support for religion on U.S. military bases

Large armed forces bases frequently have one or more Protestant ministers, Roman Catholic priests, and a Jewish rabbis on staff. The military usually pays clergy salaries, provides chaplains with offices and support staff, etc. The largest U.S. Army base, Fort Hood, TX, has 42,000 military personnel and 96 chaplains. Assuming that each chaplain (with office staff) costs a $75,000 per year, the government allocates about $171 per year for the spiritual support of each Roman Catholic, Protestant or Jewish soldier. Some smaller religions are also recognized on military bases. For example, there are 100 or more Wiccans at Fort Hood who have organized the Fort Hood Open Circle. The military has not hired a priest or priestess to lead this group, presumably because of its small size. The Seventh Day Adventist minister was assigned to look after them. Thus, the cost to support the spiritual needs of the Wiccans is near zero per year per soldier.

On 1999-MAY-18, U.S. Representative Bob Barr (GA-7) issued  a press release which attacked the freedom of religion experienced by the Open Circle. His initial concern appears to have been that the U.S. army was funding a religion that he personally felt should not be allowed within the military. Barr "tried to amend a defense authorization bill to prohibit the practice of Wicca or any other form of witchcraft at Defense Department facilities. The measure was nixed on procedural grounds." ₇ It was not considered germane to the bill to which it was attached. He has promised to try again.

Barr's action was followed on JUN-9 by a joint statement of 13 conservative Christian groups (later reduced to 11). In the words of Paul M. Weyrich, president of the Free Congress Association: "Until the Army withdraws all official support and approval from Witchcraft, no Christian should enlist or re-enlist in the Army, and Christian parents should not allow their children to join the Army. An Army that sponsors Satanic rituals is unworthy of representing the United States of America." ₈ The boycott cannot succeed, because the armed forces cannot legally pick and choose which religions it wishes to support, and which it decides to ban.

The boycott was met with amusement by some non-Christian groups. They would feel personally more secure if large numbers of Christians who are not tolerant of other religions refused to join the Army and thus did not receive training in the handling of weapons. The long-term results might be a higher level of religious peace in the U.S. More details.

Author's note:
We recommend against the general use of the words "Witch" and "Witchcraft" because they have so many varied meanings among the public- ranging from a benign religion of the ancient Celts to an evil, abusive religion which worships Satan. The religion in question here is Wicca, which is a nature-based religion that is similar to Native American spirituality. It is unrelated to Satanism.

Arkansas vaccination law:

2002-AUG-13: AR: Federal judge found vaccination law unconstitutional: The state of Arkansas requires children to be vaccinated before they can attend public school. But they allow an exemption for members of "recognized churches." The law gave the state the authority to decide which churches were valid and which were not. Cynthia Boone is the mother Ashley Boone who refused to be vaccinated against hepatitis B, a sexually transmitted disease. She is not a member of a religious group which opposes vaccination. She is against vaccinations as a personal belief. Ashley was banned from classes during the 2001-2002 school year. Judge Susan Webber Wright wrote that the law discriminated against individuals with sincerely held individual religious beliefs. She said: "'It is difficult to imagine how the state would have a compelling interest in limiting the religious exemption to some religious sects and individuals over others.'' The law remains in force, but the religious exemption has been declared unconstitutional because it conflicts with the First Amendment of the U.S. Constitution. Ashley will have to be vaccinated before she can return to school in September. ₂₁

References

1. Religion Today news summary, 1999-MAR-19.
2. "Appeals court bans prayers at high school games," Maranatha Christian Journal, posted 1999-MAR-11
3. "Adler et al v. The Duval County School Board" at: http://www.law.emory.edu/11circuit/may99/98-2709
4. American Civil Liberties Union, ACLU Newsfeed, 1999-MAY-14
5. Anne Hamming, "Council halts raising of cross on Fourth of July," The Muskegon Chronicle, 1999-JUN-15. http://mu.mlive.com/news/index.ssf?/news/stories/
6. Clarence Page, "Bewitching logic: All religions or none should be tolerated on military bases," Salt Lake Tribune, Salt Lake City, UT, 1999-JUN-17. See: http://www.sltrib.com/1999/jun/06171999/commenta/
7. Joe Holley, "A genuine witch hunt," U.S. News & World Report, 1999-JUN-14. See: http://www.usnews.com/usnews/issue/990614/witches.htm
8. Kim Sue Lia Perkes, "Until Army rejects Wicca, 13 groups call for boycott," American-Statesman, Austin TX, 1999-JUN-10 at: http://www.statesman.com/news/2state/1999/06/
9. "Education Secretary statement on Ten Commandments House vote," U.S. Newswire, 1999-JUN-18.
10. Alan Dershowitz, "Ten Commandments aren't gun control," Los Angeles Times, 1999-JUN-20. See: http://www.latimes.com:80/excite/990620/t000055467.html  
11. A web site devoted to the principle of separation of church and state is at: http://members.tripod.com/~candst/index.html 
12. T. Davies & G. Hartley, "Judge rules against republic on religious fish symbol," MSNBC, at: http://www.msnbc.com/local
13. B.G. Walker, "The Woman's Dictionary of Symbols & Sacred Objects," Harper San Francisco, (1988), Page 374
14. Baptist Press, "Town removes Christian symbol from seal," 1999-JUL-22. On line at: http://www.mcjonline.com/news/news3261.htm
15. Daniel Kurtzman, "Supreme Court refuses to tamper with church-state separation rulings," Jewish Telegraphic Agency (JTA) at: http://www.jta.org:80/oct99/12-vouc.htm
16. "Atheist looking for answers on nativity scene," Akron Beacon Journal, Akron OH. Online at: http://www.ohio.com:80/bj/news/ohio/docs/020703.htm
17. "Clergy distressed over Mass. display mixing Santa, Nativity; fears of Witches, 'Devil Worshippers' raised," American Atheists,  http://www.atheists.org/flash.line/mass4.htm  
18. Charisma News Service, "Jesus statue doesn't have to be hidden, judge rules," 2000-MAY-15. On line at: http://www.mcjonline.com/news/00/20000515e.htm 
19. The Freedom from Religion Foundation has a web site at: http://www.ffrf.org 
20. Stuart Shepard, "Judge: No Prayers to Jesus," at: http://family.org/cforum/fnif/news
21. James Jefferson, "Federal judge strikes down religious exemption to Arkansas vaccination law," Associated Press, at: http://www.boston.com/dailynews/226/
22. "Join us! Wednesday, March 2 rally at Supreme Court..." AANEWS, 2005-FEB-28.
23. Bill Mears, "Ten Commandments before high court. Explosive church-state issues from Kentucky, Texas," CNN,com Law Center, 2005-MAR-01, at: http://www.cnn.com/

Links to web sites which deal with separation issues:

Copyright © 1998 to 2005 by Ontario Consultants on Religious Tolerance
Original publishing date: 1998-AUG-5
Latest update: 2005-JUL-04
Author: B.A. Robinson