Establishment Clause

  • April 4, 2013

    by Jeremy Leaming

    Apparently a bit of sanity has surfaced in the North Carolina legislature where a couple of lawmakers introduced a resolution declaring the state could establish an official religion. The Charlotte Observer reports that House Speaker Thom Tillis is saying the chamber will not vote on the resolution.

    In this case Joint Resolution 494, which in part declared that the First Amendment does not apply to the states, showcases a couple of lawmakers who are either woefully ignorant of the U.S Constitution and First Amendment jurisprudence or are blatantly provocative.

    First, as has been pointed out by a lot people like law school professors, much of the Bill of Rights do apply to the states. Starting in the 1920s federal courts ruled that the Constitution's 14th Amendment applies most of the Bill of Rights to the states. 

    Nevertheless, the lawmakers’ resolution states that the First Amendment’s Establishment Clause, which provides for a separation of religion and government, “does not apply to the states, municipalities, or schools.” The resolution also includes sections declaring the Constitution “does not prohibit states or their subsidiaries from making laws respecting an establishment of religion,” and that the N.C. legislature “does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.”

    Although the resolution does not specify what religion N.C. would officially recognize, it undoubtedly would be Christianity. The lawmakers pushing the resolution said they were doing so in part to provide a show of support to Rowan County Commissioners who are waging a legal battle to keep using Christian prayers at their public meetings. (The Supreme Court has ruled that if lawmakers feel the need to use prayer during official business, it should be nonsectarian, otherwise they leave themselves open to a First Amendment challenge. The ACLU has lodged a lawsuit against the county commission arguing that its prayer policy violates the separation of government and religion.)

  • February 13, 2013
    Guest Post

    by Dena Sher, ACLU Washington Legislative Office & Tyler Ray, ACLU Washington Legislative Office. This piece is crossposted at the ACLU’s Washington Markup blog.

    The impact Superstorm Sandy had on homes, businesses, nonprofits, and houses of worship across the Northeast was devastating. And still, in the wake of the storm, these institutions reached out to their communities to provide the help they could. At the same time, they began the process of their own rebuilding; for congregations, this meant repairing their sanctuaries and sacred spaces.

    After a disaster, businesses and nonprofits often look to government assistance to help rebuild damaged property. Despite the talk in the past couple of months about how these government assistance programs discriminate against houses of worship, they don't. All nonprofit organizations (including houses of worship) and for-profit businesses can get low-interest, long-term, government-secured loans -- up to $2 million -- for losses not fully covered by insurance. Direct FEMA grants of taxpayer funds, however, are intended to serve a certain purpose—those grants are for nonprofits with facilities used for emergency, essential, and government-like activities to the community at large. Houses of worship, just like the many other nonprofit facilities, aren't then eligible to receive FEMA grants. Today, the House of Representatives approved H.R. 592, the so-called Federal Disaster Assistance Nonprofit Fairness Act of 2013, a bill that would upend this well-established policy to explicitly permit FEMA to funnel taxpayer funds to houses of worship.

    FEMA's policy not only ensures that FEMA grants are used to rebuild facilities that provide the most critical services to the entire community, but also reflects an important constitutional principle. Religious liberty is one of our nation's most fundamental values and it starts from the precept that religion and religious institutions thrive when both religion and government are safeguarded from the undue influences of the other.

  • September 7, 2012

    by Jeremy Leaming

    We’ve heard it for decades from the Christian Right that the nation’s public schools are hostile to religion, prohibiting students from praying or engaging in other religious activities. It is rhetoric that has helped fuel the so-called culture wars. The rhetoric is also blatantly misleading.

    There were a couple of U.S. Supreme court cases in the 1960s that prohibited organized religious activities in the public schools. But neither case, regardless of the shrill cries of Christian Right leaders, prohibited truly voluntary student prayer. The concept was fairly straight forward. Public school officials are government employees and the First Amendment’s establishment clause bars the government from demanding that people, including students, pray or engages in religious activity. The free exercise clause of the First Amendment provides that government must be neutral toward religion and cannot take undue action to interfere with religious practices.

    So those two high court cases – Engel v. Vitale and Abington v. Schempp – did not ban religion from the schools. Students can pray in school on their own time, such as moments before a test, or with other students, as long as such activity is not disruptive of the school’s mission to teach reading, writing, math, history, and science.  

    Nonetheless, those high court cases have been twisted by Christian Right lobbying groups, such as Focus on the Family, the Family Research Council, American Family Association, and TV preachers such as Pat Robertson, to help their campaign to portray America’s public places, even limited ones like public schools, as hostile to Christianity. Government officials they often argue are bent on banishing religion and Christianity in particular, from the public square.

    The misinformation has caused great confusion in the public schools about religion’s proper place. But the First Amendment Center’s Charles Haynes, director of the Religious Freedom Education Project at the Newseum, has spent decades trying to straighten things up.

    In a piece for the First Amendment Center’s website, Haynes says progress is being made.

  • September 27, 2011

    by Jeremy Leaming

    The Roberts Court, some commentators have noted, appears to side more often than not with corporate interests, and has altered precedent on pleading standards that make it much easier for judges to dismiss civil complaints – think Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. The Supreme Court also has weakened the ability of people to band together to challenge malfeasance of large corporations, see Wal-Mart v. Dukes and AT&T v. Concepcion.

    A new ACS Issue Brief explores another avenue to the courthouse that the Roberts Court is narrowing, involving the ability of people to challenge unconstitutional government support of religion.

    The First Amendment’s establishment clause requires that government act with neutrality toward religion, meaning a certain amount of separation between government and religion is a must. But, according to the ACS Issue Brief, the ability of people to bring constitutional challenges to government action supporting or advancing religion is becoming increasingly difficult.

    In “The Slow, Tragic Demise of Standing In Establishment Clause Challenges,” Willamette University law school professor Steven K. Green writes, “By deciding not to decide certain classes of challenges, courts will effectively be throwing Establishment Clause questions … to the politically elected branches. Political expediency, rather than constitutional fealty, will become the rule of law, and Justice Robert Jackson’s immortal statement about withdrawing questions of constitutional rights from ‘the vicissitudes of political controversy’ and placing them ‘beyond the reach of majorities and officials’ will be stood on its head.”

    Green notes that in its 1968 Flast v. Cohen opinion, the Supreme Court upheld the right of taxpayers to challenge “government expenditures where the litigant could demonstrate a connection between the legislative action authorizing the expenditure and the purported constitutional violation. As a result of Flast, any taxpayer could allege that a legislative appropriation on behalf of religion violated the Establishment Clause, regardless of her own connection to the entity or institution receiving the government funds.”

  • July 7, 2011
    Church, State, and the Crisis in American Secularism
    Bruce Ledewitz

    By Bruce Ledewitz, a law professor at Duquesne University School of Law.

    When they think about the Pledge of Allegiance at all, most constitutional law teachers probably agree with Douglas Laycock. He wrote recently that while the “under God” language is “in principle” an unconstitutional violation of government neutrality between religion and irreligion, he is “not campaigning to amend the Pledge” and litigation over it is “decades premature.” What Laycock does not seem to realize is that he is dooming America to years of vicious pro-God/anti-God politics.   

    We got a taste of what this kind of politics will be like when NBC cut — inadvertently? — the words “under God” from two renditions of the Pledge in a patriotic feature during the lead-up to coverage of the U.S. Open. A few days later, on June 24, Family Research Council President Tony Perkins hosted six-term Missouri Congressman Todd Akin on his weekly webcast radio show and asked Akin why NBC would omit that language. Akin responded: “Well, I think NBC has a long record of being very liberal, and at the heart of liberalism really is a hatred for God and the belief that government should replace God.”

    This charge — that liberals hate God — sparked a great deal of criticism, which led to a sort of apology by Akin to the effect that he was not speaking about any one person but about liberalism as a political movement. Akin also clarified his comment to indicate that he was aiming at fights over government religious expression: “I think I can clarify that I was talking about public references, too. I think that clarifies it a little bit.”

    Laycock anticipates decades of a continuing effort by a growing national segment of nonbelievers to eliminate what they believe are unconstitutional references to God in the public square. And during all this time, their political opponents will be calling them enemies of God. How could such a struggle fail to poison our politics and destroy our hopes for community?

    My recent book, Church, State, and the Crisis in American Secularism, is the culmination of my effort to alter this destructive dynamic. Not by junking government neutrality, which remains the only viable interpretation of the Establishment Clause for an increasingly pluralistic nation. Not by compromise, since God-language either remains or it does not. And not by ignoring violations of the Constitution or pretending that the national motto — In God We Trust — is not meaningful or important.