SEPARATION OF CHURCH & STATE: Four Case Studies

By Alan Shapiro

 

To the Teacher:

This is a teachable moment for study and discussion of the First Amendment and the religiously tinged politics of our time. The Supreme Court's decision banning public funding for religious study and its decision to uphold a voucher system that pays religious schools' tuition made headlines. Religion was a potent force in the 2004 presidential election and greatly influenced the recent Congressional effort to intervene in the Schiavo case. Other church/state issues in the headlines: disputes over the teaching of evolution, efforts to make a constitutional issue of gay marriage, senatorial battles over federal appeals court appointees, and the perennial Roe v. Wade issue.

The materials below help students explore the issue of church and state, beginning with a True-False quiz to stimulate student interest in the First Amendment and related issues. Reading 1 offers an historical overview of the First Amendment. Reading 2 provides four case studies for student examination and role-playing. Suggestions for additional classroom activities follow.

 


Church and State: An Introductory Quiz

Before each number write T (True), F (False) or U (Uncertain).

1. Before the Constitution was adopted, a Virginia or Maryland citizen had to pay taxes to help support the Anglican Church whether the citizen belonged to it or not.

2. George Washington did not believe that the United States government was founded on the Christian religion.

3. The Constitution forbids the worship of more than one god.

4. The Constitution requires a candidate for public office to be a member of an established religion.

5. The word "God" does not appear in the Constitution.

6. The facts that a) "In God We Trust" appears on all U.S. currency and b) "under God" is part of the Pledge of Allegiance demonstrate that the founders of the U.S. believed in God.

7. The Constitution permits a public school to conduct a non-denominational prayer.

8. The Constitution does not permit a public school student to pray in school.

9. A school system may require science instruction that includes teaching "alternative theories" to evolution.

10. Public financing for a church, synagogue, or mosque building is constitutional.

 

Answers:

1. True
2. True (See first reading.)
3. False
4. False
5. True
6. False. (These phrases are products of Congressional legislation in the 1950s.)
7. False (See Case 2 in second reading.)
8. False (The Supreme Court ruling on Case 2 prohibits the official conduct of prayers. Students in public schools may pray, read the Bible or other religious texts on their own, say grace at lunch, distribute religious materials to friends, and join voluntary religious clubs.)
9. True (See Dover, PA and the State of Kansas.)
10. Uncertain (See Case 4. The constitutionality of such financing has not yet been tested judicially.)

 


Student Reading 1

First Amendment History

 

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
Amendment to the U.S. Constitution, Article I of the Bill of Rights

In 1832 cholera broke out in the United States. Senator Henry Clay urged that Congress recommend to President Andrew Jackson a National Fast Day for prayers to save Americans from "the Asiatic scourge." But Jackson had already refused to proclaim such a day, saying, "I could not do otherwise without transcending the limits prescribed by the Constitution for the President; and without feeling that I might in some degree disturb the security which religion now enjoys in this country in its complete separation from the political concerns of the General Government."

President Jackson was following the example of an earlier president, Thomas Jefferson, who maintained that the First Amendment forbade the federal government "from intermeddling with religious institutions, their doctrines, discipline, or exercises." He added, "Fasting and prayer are religious exercises" and the President has "no authority to direct the religious exercises of his constituents."

Clay's resolution passed in the Senate anyway, though it failed in the House, where Gulian Verplanck of New York declared, "Let us leave prayer to be prompted by the devotion of the heart, and not the bidding of the State."

Nevertheless, before and after 1832 Congress and the President approved of resolutions for days of prayer. And in 1952 Congress resolved that the President should declare a National Day of Prayer every year.

Jefferson is also the president who, in 1802, responding to a letter from the Danbury, Connecticut Baptist Association, produced one of the most famous phrases in Constitutional history. Quoting the First Amendment, he wrote that he revered "the act of the American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof," and added "thus building a wall of separation between church and state." (William O. Douglas, An Almanac of Liberty)

Before the Constitution was adopted and the United States formally organized, state constitutions required taxes to support churches and discriminated against Catholics, Jews, and atheists. In Virginia and Maryland the Anglican Church was officially recognized. Even though Anglicans were a minority in those states, their church was supported by public taxes and only their clergy could marry and baptize. These states also had religious qualifications for voting and office-holding.

Jefferson and James Madison strongly supported the complete separation of church and state. In 1784 they fought successfully in the Virginia legislature to postpone an effort to support all Christian churches by taxation. The following year Madison published "Memorial and Remonstrance against Religious Assessments," in which he argued that:

  • It is wrong to tax non-believers in a religion for the benefit of those who do believe.
  • An established clergy is a tool for rulers who want to suppress the liberties of citizens.
  • The legal establishment of a church produces bigotry and persecution.
  • If a government favors Christianity over other religions, it can later favor one Christian sect over other Christian sects and force citizens to support it.

These arguments defeated the proposed Virginia law. Madison went on to become the chief author of the Bill of Rights.

In 1811 when James Madison was the fourth president of the United States, he acted on his understanding of the First Amendment. Congress had approved unanimously a bill reserving five acres for a Baptist meeting house that stood on public lands in what was then the Mississippi Territory. The five acres were worth about $10. Madison vetoed the measure because it would be a precedent for reserving U.S. land and appropriating U.S. funds "for the use and support of religious societies, contrary to the article of the Constitution which declares that Congress shall make no law respecting a religious establishment." (Irving Brant, The Bill of Rights: Its Origin and Meaning)

Why did the founders of the U.S. think it necessary to insist in the First Amendment that Congress make no law providing for "an establishment of religion"?

There were many religious sects in the country. If the new U.S. government were to establish a religion, which one would Congress pick? What would then happen to all those religions that were not picked? Many Americans feared the result.

They had good reason for their fears. In 16th and 17th century Europe, rulers had suppressed liberties and promoted bigotry and persecution as well as mass murders in favoring one Christian sect over another. In Ireland, Catholics could not worship publicly. In England they were excluded from public office. Charles I, an English king, tried to force Scotch Presbyterians to accept the Anglican prayer book. In Germany, Catholics and Protestants fought and killed each other in a 30-year war. For almost a month in 1572 French Catholics slaughtered some 50,000 French Protestants, known then as Huguenots.

The founders thus produced a secular constitution guaranteeing "the free exercise" of religion but favoring none and saying nothing about God. The 1797 Treaty of Tripoli included the statement that "the government of the United States is not in any sense founded upon the Christian religion." President George Washington approved this treaty, and the Senate supported it unanimously.

But disputes have continued for more than 200 years over what meaning should be given to "an establishment of religion" and whether there should be "a wall of separation between church and state." Since the Bill of Rights became part of the Constitution in 1791, presidents and Supreme Court justices as well as ordinary American citizens have argued these questions. The results have had real-life consequences.

 

For discussion

1. What pre-Constitutional experiences and understandings led the founders to create the First Amendment?

2. What is your understanding of the First Amendment clause "respecting an establishment of religion"?

 


Reading 2

Church & State Case Studies

 

CASE 1:
Buses for religious school students? (Everson v. Board of Education, 1947)

Under a New Jersey law the state paid for the transportation of students attending private religious schools. A citizen objected to this subsidy on the grounds that it was a violation of "the establishment clause" of the First Amendment. In 1947 the Supreme Court ruled on this case.

YOU ARE A JUSTICE of the Supreme Court. Write a one-paragraph decision in which you rule to support or to overturn the New Jersey law. Explain your decision by making reference to "the establishment clause" of the First Amendment.

CASE 2:
A state-authorized prayer in public schools? (Engel v. Vitale, 1962)

"Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessing upon us, our parents, our teachers and our Country."

The New York State Board of Regents prepared this prayer for use in public schools. The board of education in New Hyde Park, New York, then directed the school district's principal to have the prayer recited by students in every class at the beginning of each school day.

A group of New Hyde Park parents challenged the prayer as "contrary to the beliefs, religions, or religious practices of both themselves and their children" and filed a suit to eliminate it. In 1962 the Supreme Court ruled on the case.

YOU ARE A JUSTICE of the Supreme Court. Write a one-paragraph decision in which you rule for the group of parents who object to the prayer or for the board of education. Explain your decision by making reference to Justice Black's interpretation of "the establishment clause" of the First Amendment.

CASE 3:
Is teaching evolution controversial?

In July 1925 the country was focused on the Dayton, Tennessee trial of a science teacher, John Scopes. He was charged with violating a state law prohibiting the teaching of evolution. Supporters of the law believed that God created the earth and all of its creatures, not some evolutionary process. Scopes' lawyer Clarence Darrow argued that the law violated the constitutional principle of the separation of church and state as well as academic freedom. Scopes' conviction was overturned on a technicality and no judgment made on the constitutional issue.

But 80 years later the argument continues. A National Science Teachers Association survey reveals that about one in every three science teachers agree that "they feel pushed to de-emphasize or omit evolution or evolution-related topics from the curriculum." The teachers report pressure from students and parents, many of whom believe that God created human beings, not evolutionary processes.

In a number of states Christian activists are pushing to require public school teachers to discuss "intelligent design" as an alternative to the widely accepted scientific theory of evolution. Proponents of intelligent design believe that certain features of the universe and of living things are best explained by an "intelligent cause" (such as God) rather than an "undirected process" like natural selection. A supporter of "intelligent design," Steven Meyer, director of the Center for Science and Culture at the Discovery Institute in Seattle, maintains, for example, that "the complexity of the cell is such that Charles Darwin could never have imagined." At the least, he argues, schools should teach the controversy.

Eugene Scott of the National Center for Science Education responds that "'Teach the controversy' is a deliberately ambiguous phrase. It means 'pretend to students that scientists are arguing over whether evolution took place.' That is not happening."

For this reason, the American Association for the Advancement of Science announced that it would not participate in a scheduled May 2005 Kansas legislative hearing on instruction in science classes which, in the view of its sponsors, should provide "the full range of views on the topic." The CEO of the American Association for the Advancement of Science, Alan Leshner, said, "The fundamental structure of the hearing suggests that the theory of evolution may be debated.  Although scientists may debate details of the mechanisms of evolution, there is no argument among scientists as to whether evolution is taking place."

Another opponent of evolution instruction is Kenneth Ham, a leader of "Answers in Genesis," a Christian ministry that advocates a literal reading of the Bible. Ham said of evolution, "Who was there to see that happen? Who was there to see life rise from matter? No one. How did they [supporters of evolution] know it happened? It's their belief." (PBS News Hour, 3/28/05: www.pbs.org)

In North Collins, NY, a clergyman delivered a sermon attacking two community science teachers for teaching about evolution and questioned their morality in a newspaper ad. (New York Teacher, 3/31/05)

In Cobb County, Georgia, school officials had stickers placed in high school biology textbooks that called evolution "a theory, not a fact." A federal judge later ordered their immediate removal, saying they were an unconstitutional endorsement of religion. (Washington Post, 1/14/05) As for evolution as a "theory," scientists view a "theory"—the theory of gravity, for example—not as an unproved assumption but as "an explanation for a phenomenon or set of phenomena based on extensive history and testing." (www.evolutionhappens.net)

The public controversy over evolution goes beyond instruction in classrooms. Recently, about a dozen IMAX film centers in the South decided not to exhibit "Volcanoes of the Deep Sea." According to Richard Lutz, chief scientist for the film, this is because it suggests undersea vents existing in underground volcanoes might have been where life started, thus denying creation by God.

YOU ARE A SCIENCE STUDENT. Prepare a three to five minute talk for a board of education meeting in which you explain:

1) why you do or do not want evolution taught in your science class and

2) why you do or do not want "intelligent design" and/or the Biblical creation account included in your science instruction.

CASE 4:
Federal funding for religious groups?

Soon after taking office, President Bush created a White House Office of Faith-Based and Community Initiatives. Its goal is "to enable faith-based and community organizations to provide compassionate care for the poor by receiving federal grants on the same basis as other groups. President Bush believes that it is wrong for these groups to be discriminated against when it comes to partnering with the Federal government." (www.whitehouse.gov)

President Bush's move was a direct challenge to members of Congress who believe that providing public funds to support social programs run by religious groups crosses the line separating church and state. There are now religious-based offices in 10 federal agencies, including the Department of Housing and Urban Development, the Department of Health and Human Services, and the Departments of Labor, Justice, and Education.

According to the president, his administration awarded $2 billion in grants in 2004 to social programs run by churches, synagogues, and mosques. Religious charitable programs, the president said, cannot discriminate against people of other faiths. "What that means is if you're the Methodist Church and you sponsor an alcohol treatment center, they can't say 'Only Methodists, only Methodists who drink too much can come to our program. 'All drunks are welcome' is what the sign ought to say." (New York Times, 3/2/05)

Federal funds have financed the construction of facilities at churches, synagogues, and mosques to house programs for drug addicts, the jobless, and the mentally ill. Contrary to those who say federal support for such programs is "constitutionally troubling," President Bush says, "I fully understand it's important to maintain the separation of church and state. We don't want the state to become the church, nor do we want to the church to become the state." (New York Times, 6/2/04)

However, organizations like People for the American Way are opposed to the Bush administration's new policies, which they say "allow job discrimination on the basis of religious belief, tax funds to be used to build facilities at houses of worship, and federal funds to go to inherently religious groups.  Some religious institutions may be unable to separate their secular work from their religious activities, and the [faith-based initiatives program] does not require oversight and monitoring of groups that receive the federal funds.  Other problematic provisions include the unrestricted display of religious art, scriptures, or symbols where government funded services are provided.  [There may also be] religious-based employment discrimination by permitting the direct funding of religious organizations that only hire members of their faith, despite constitutional problems." (www.pfaw.org)

YOU ARE AN AMERICAN CITIZEN. Write a letter to President Bush expressing your view of his faith-based initiatives program. In your discussion include reference to the First Amendment.

 


To the Teacher: The actual Supreme Court decisions

Case 1:

Justice Hugo Black wrote a decision for the majority. He stated that there was a difference between programs that would contribute "money to the schools" or "would support them" (both unconstitutional under "the establishment clause") and those "indisputably marked off from the religious function" of schools. As legal scholar Stephen Monsma explained, the Supreme Court "held that bus transportation was clearly separable from the religious mission of the schools and similar to general public services such as police and fire protection and sewage disposal. Thus it could be supported by public funds."

In their decision the Supreme Court also established the principle that public money can be used to provide services not directly connected with the religious activities of religious organizations. Thus, the use of public money for a secular activity (bus transportation in this case) is constitutional; the use of public money for any religious activity is not.

In the decision Justice Black also explained how the Supreme Court viewed "the establishment of religion" clause in the First Amendment:

"Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can they force nor influence a person to go to or to remain away from church or force him to profess a belief or disbelief in any religion. No person can be punished for professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions.  Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.

"In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and State.'"

Case 2:

The Supreme Court's decision was delivered once again by Justice Hugo Black: "We think that by using its public school system to encourage recitation of the Regents' prayer, the State of New York has adopted a practice wholly inconsistent with the Establishment Clause. There can, of course, be no doubt that New York's program of daily classroom invocation of God's blessings is a religious activity.  We think that the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by the government.

"It is a matter of history that this very practice of establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek religious freedom in America."

In its 6-1 ruling the Supreme Court reversed an earlier decision by New York State's highest court. It had upheld the prayer, ruling that no student was forced to recite it. Therefore the prayer did not violate the First Amendment.
 

 

Class Discussion

After discussing with students their decisions in the two Supreme Court cases, teachers can share the actual court decisions with them and discuss the following questions about them and the other two cases:

Case 1: Why did the Supreme Court rule that New Jersey had not violated "the establishment clause"? Do you agree with their decision? Why or why not? Explain by using Justice Black's comments about that clause.

Case 2: Why did the Supreme Court decide that New York had violated "the establishment clause? Do you agree with their decision? Why or why not?

Case 3: How would you answer the title question? What are your reasons? Should "intelligent design" or the view that God created the universe be taught and discussed in science classes? Why or why not?

Case 4: Should any of President Bush's "faith-based initiatives" be tested constitutionally? Why or why not? Imagine a drug rehabilitation program at a church, synagogue, or mosque that was staffed completely by members of the religious group. What would your reaction be to a staff member's presenting a copy of a religious pamphlet to each person attending a session? Explain.

 


Suggested classroom activities

For further discussion

1. Following completion of papers, divide the class into groups of four. Have students read their papers and then discuss briefly each student's decision and the reasons for it. The group is then to select what it regards as the best paper for reading to the entire class for further discussion.

2. In place of having students write papers—or after they've completed the papersóconduct a fish bowl discussion in class to enable students to explore the issues in each case. Invite five to seven students to begin the conversation. Ask them to make a circle with their chairs in the middle of the room. Try to ensure that the group reflects diverse points of view on the issue. Ask everyone else to make a circle of chairs around the fish bowl. Only people in the fish bowl can speak; this enables sustained, focused listening by other members of the class. You might begin by asking a student in the fish bowl to state and briefly explain a decision in a case. Each of the other students then speaks to the issue without interruption. After all have spoken, ask the fish bowl group for any clarifying questions. After 15 minutes or so, invite students from the larger circle to participate in the fish bowl conversation by tapping a fish bowl student on the shoulder and moving into that student's seat.

For inquiry

An investigation of other Supreme Court cases bearing on the establishment clause. They include two recent cases: Locke v. Davey (the constitutionality of a state scholarship plan that bars theology students from participating) and Zelman v. Simmons-Harris (the constitutionality of the use of public money for religious school tuition). An important earlier case (1948) is McCollum v. Board of Education (the constitutionality of a program that permits outside religious teachers to enter public school once a week to provide religious instruction). Web searches on each case name will yield much information and opinion.

Questions on other than school issues include:

  • Should the Ten Commandments be displayed in a public courthouse?
  • Should Congress require pharmacists to supply drugs related to contraception or abortion?
  • Should Congress approve a constitutional amendment banning gay marriage?
  • Should Congress pass legislation regarding the rights of individuals or families to make end-of-life decisions (as it did, for example, in the Schiavo case)?

     

This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email them to: lmcclure@morningsidecenter.org