SECULAR RECOMMENDATIONS ON THE FREE EXERCISE CLAUSE

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The wall of separation of church and state protects both freedom from government-sponsored religion and a private individualÔÇÖs freedom of conscience. This reflects the Madisonian concern that secular and religious authorities must not interfere with each otherÔÇÖs respective spheres of choice and influence. The Free Exercise Clause forbids the government from interfering with religious belief, opinion and some, but not all, actions taken with religious motives. While the freedom to believe is absolute, the freedom to act may be circumscribed by law, so long as those laws are not meant to discriminate against a particular religion.

The Free Exercise Clause does not give a religious actor a special right to ignore a law by claiming that complying with it conflicts with its religion. Neutral laws of general applicability that incidentally burden religion are not unconstitutional.

A claim of a right to ÔÇ£religious accommodationÔÇØ under the Free Exercise Clause may be rejected if it would result an impermissible preference of religion prohibited by the Establishment Clause. The Supreme Court has indicated that accommodation is permitted only when it ÔÇ£alleviates exceptional government-created burdens on private religious exercise.ÔÇØ An accommodation which ÔÇ£conveys a message of endorsementÔÇØ of the religious practice being accommodated, however, advances religion in violation of Lemon.

SECULAR RECOMMENDATIONS ON THE ESTABLISHMENT CLAUSE

Introduction

In 1947, the first modern Establishment Clause case made its way to the Supreme Court, and the Court ruled that the Fourteenth Amendment applies the clause to all levels of government.
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The Supreme Court has since interpreted the Establishment Clause in dozens of cases. Certain general principles have emerged from the CourtÔÇÖs jurisprudence. Separation of church and state means ÔÇ£that government may not promote or affiliate itself with any religious doctrine or organisation, may not discriminate among persons on the basis of their religious beliefs and practices, may not delegate a governmental power to a religious institution, and may not involve itself too deeply in such an institutionÔÇÖs affairs.ÔÇØ

The government cannot ÔÇ£set up a church

[,] . . . pass laws which aid one religion, aid all religions, or prefer one religion over another[,] . . . force [or] influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion[,] . . . punish [any person] for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance[,] . . . [impose a] tax in any amount, large or small, . . . to support any religious activities or institutions.ÔÇØ

In short, the government cannot promote, advance, fund, endorse, affiliate itself with or participate in religion. Furthermore, the First Amendment ÔÇ£mandates governmental neutralityÔÇØ both among religions and ÔÇ£between religion and non-religion.ÔÇØ The Supreme Court has clarified that the Constitution does not merely proscribe the preference of one Christian sect over another. . . [It] require[s] equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism.

The Supreme Court has distilled these principles into a test to be applied by courts in cases in which an Establishment Clause challenge is brought. All governmental actions must: 1) have a secular purpose, 2) not have the effect of advancing or inhibiting religion, and 3) not result in excessive entanglement between church and state. The court has named this analysis the ÔÇ£Lemon testÔÇØ after the case in which it was first stated.

RELIGIOUS DISPLAYS ON GOVERNMENT PROPERTY

Ten-Commandments-Austin-State-Capitol-300x1881The Establishment Clause prohibits government sponsorship of religious messages. Therefore, it is inappropriate for government entities to erect or sponsor religious symbols or displays on government property.

POLICY RECOMMENDATION: Restricting any religious symbols or displays on government property allows government entities to remain completely religiously neutral and conform to the courtÔÇÖs interpretation of the Establishment Clause.

GOVERNMENT FUNDING OF RELIGIOUS INSTITUTIONS

The Establishment Clause prohibits government funding of religious institutions. MadisonÔÇÖs Memorial opposed even a three pence tax that would support ÔÇ£teachers of the Christian religionÔÇØ as a ÔÇ£dangerous abuse of power.ÔÇØ Despite this principle, billions of taxpayer dollars have gone to religious groups to provide ÔÇ£secular services.ÔÇØ The law prohibits the use of the money for any ÔÇ£specifically religiousÔÇØ activities. For example, the government may not fund construction or repair of ÔÇ£buildings in which religious activities will take place.ÔÇØ

POLICY RECOMMENDATION: Taxpayer dollars should not fund religious activities or institutions, as proselytising and religiously motivated discrimination are inherent and oversight is functionally nonexistent.

LEGISLATIVE PRAYER

legislative-prayer-300x1991Prayer at government meetings is unnecessary. When government bodies lend their power and prestige to religion, it amounts to an endorsement that excludes the 22% of the population that is nonreligious. Including prayer at legislative meetings turns minorities, including atheists, Jews, Muslims, Hindus and Wiccans, into second-class citizens. Even when prayers are ÔÇ£nondenominational,ÔÇØ any form of prayer will inevitably exclude various taxpayers and constituents.

In Marsh v. Chambers, the U.S. Supreme Court carved out a narrow exception to the Establishment Clause for legislative prayer as a nod to history and custom. The Marsh exception was confined to a situation involving a non-sectarian, non-denominational prayer, led by an officiant who had not been selected based upon any impermissible religious motive, and which was addressed to the body of legislators present, and to no one else. Additionally, under this standard, legislators must have the option not to participate, and the prayer must not be ÔÇ£exploited to proselytise or advance any one, or to disparage any other, faith, or belief.ÔÇØ Some federal appellate courts have ruled that frequent sectarian prayers to ÔÇ£JesusÔÇØ affiliate the government with Christianity and are unconstitutional. The Supreme Court revisited its Marsh decision in the fall of 2013 (decision expected in 2014) when it took up Town of Greece v. Galloway.

POLICY RECOMMENDATION: Because of the legal uncertainty and the exclusionary effect such prayers have on non-theists and others who do not share the faith of the officiant, the best practice is to exclude prayer at legislative meetings.

TEN COMMANDMENTS

No Ten Commandments display in a public school has ever survived constitutional scrutiny by a court of last resort. Other displays of the Ten Commandments on public property have also been struck down as unconstitutional.

RELIGIOUS HOLIDAY DISPLAYS

It is impermissible for a government entity to place a nativity scene or menorah as the sole focus of a display on government property.

In contrast, temporary holiday displays which are secular in nature but include a religious element that is not the predominant element of the display have sometimes been permitted.

CROSS MEMORIALS

No use of Christian crosses as a form of war memorial has been upheld by a federal court as constitutional. These courts have found that the displays amount to a governmental promotion of, and affiliation with, Christianity and give the impression that only Christian soldiers are being honoured.

SECULAR RECOMMENDATIONS ON CONSTITUTIONAL HISTORY

constitutional_history The first freedom protected by the Bill of Rights is the right of every American to a secular government that does not subscribe to religious beliefs or prohibit citizen engagement in private religious practices. Thomas Jefferson, in a famous letter to the Danbury Baptist association in 1802, expressed his ÔÇ£sovereign reverence

that act of the whole American people which declared that their legislature should ÔÇÿmake no law respecting an establishment of religion, or prohibiting the free exercise thereof,ÔÇÖ thus building a wall of separation between Church & State.ÔÇØ JeffersonÔÇÖs stipulation has long been acknowledged by the U.S. Supreme Court as ÔÇ£an authoritative declaration of the scope and effectÔÇØ of these two clauses of the First Amendment, known as the Establishment Clause and the Free Exercise Clause, respectively.

The desire of AmericaÔÇÖs founders to establish a secular government leaving religion in a protected, private sphere was rooted in their experiences with the officially ÔÇ£establishedÔÇØ Church of England during the colonial period (as well as with other established churches throughout Europe) and the religious violence of the wars triggered by the Reformation and its aftermath.

Many of the earliest settlers in North America were religious nonconformists who immigrated to the New World to escape a society where the head of state was also the head of the national church, and where refusal to belong and conform to that churchÔÇÖs teachings was not only heresy, but treason. Having escaped into the relative obscurity of a distant wilderness, many of these settlers proceeded to establish their own theocracies with their particular preferred brand of religion as the established orthodoxy. Roger Williams, for example, was banished from Puritan-governed Massachusetts in the 1630s due to his religious disputes with government officials.

He then founded the colony of Rhode Island, which guaranteed freedom of conscience by separating church and state, thus becoming one of the first true beacons of religious liberty in the colonies.

In the period leading up to the Revolutionary War, more Americans began to embrace WilliamsÔÇÖ legacy and resisted state religion. VirginiaÔÇÖs Statute for Religious Freedom, drafted by Thomas Jefferson and passed in 1786, provided that ÔÇ£no man shall be compelled to frequent or support any religious worship, place, or ministry.ÔÇØ

VirginiaÔÇÖs Statute also proclaimed that ÔÇ£our civil rights have no dependence on our opinionsÔÇØ regarding religious questions, and that the government has no right to ÔÇ£intrude . . . into th field of opinionÔÇØ except when such ÔÇ£principles break out into overt acts against peace and good order.ÔÇØ

Political support for the passage of the Virginia bill had been marshaled by James MadisonÔÇÖs famous Memorial and Remonstrance Against Religious Assessments, a tract written to oppose a bill that would have re-imposed the former colonial tax funding the teaching of Christianity. Madison wrote, ÔÇ£it is proper to take alarm at the first experiment on our liberties,ÔÇØ calling this vigilance, ÔÇ£the first duty of Citizens, and one of the noblest characteristics of the late Revolution.ÔÇØ He then called upon citizens to defend the separation of church and state, asking, ÔÇ£[w]ho does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?ÔÇØ

This strong desire for secular governance is evidenced by the Constitution, a completely secular document, which includes no references to Christianity (or other religions) in particular, or to religious concepts, such as God, in general. The only two references to religion are exclusionary: the No Religious Test Clause, found in Article VI, which forbids the imposition of any religious test as a condition for holding a public office or governmental position, and the First Amendment, which separates church and state.

The Constitution, although generally setting up a government according to the will of a democratic majority, protects the civil rights and liberties of all from abuse by that majority. Any law that violates the Bill of Rights, which includes the Establishment Clause, is unconstitutional. Therefore, it is irrelevant whether any particular governmental measure promoting religion is popular; if it violates the separation of church and state, the court must strike it down.