American Civil Liberties Union Briefing Paper Number 3
CHURCH AND STATE
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 of |
| grievances." |
The framers designed this amendment to guarantee religious freedom,
understanding, as do most church officials toady, 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 a s daily prayer, into the public schools. At times,
religious minorities, including members of "cults," have been
discriminated against because of their beliefs. And today, many 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
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 a 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 times?
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, 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
Does the phrase "separation of church and state" actually appear in the
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, t he 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 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,
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 ore reading the Bible
between classes. However, school officials cannot be involved in
sponsoring religious exercise by setting the time or place of these
Why can't schools be required by law to teach the biblical theory of the
earth's origins -- "creationism" -- in addition to teaching evolution?
"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,
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
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
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 non-religious 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
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
If the government cannot be involved with religion, does that mean that
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 control?
No. The ACLU believe that clergy of any denomination who express their
views on political and social issues are exercising their constitutional
Are members of religious "cults" also protected by the Establishment
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 the 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
they oppose all wars or even if they only oppose a particular war, whether
the basis of their views is moral, humanitarian or religious.
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