On Separation of
Church and State
By Barbara A. Simon, Esq.
Freedom Writer, January/February 1996
There are those who say that the phrase "separation of church and state" does not appear in the Constitution. They are correct. The words "a wall of separation between church and state" are not found in our Constitution. Neither are the words "separation of powers"; "right to travel"; "freedom of association": or "religious liberty" found in our Constitution. This does not mean that those concepts are not embodied in our Constitution. The words "wall of separation between church and state" are the words of Thomas Jefferson.
The First Amendment to the Constitution reads: "Congress shall make no law respecting an establishment of religion [government neutrality toward religion], or prohibiting the free exercise thereof [religious freedom]." The 14th Amendment extended this requirement beyond the Federal government to all the state governments.
In Reynolds v. United States (1878), the Supreme Court stated, "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.'" This was further emphasized in Everson v. Board of Education (1947), as expressed in the opinion for the majority written by Associate Justice Hugo Black. He wrote, "The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach."
In Lemon v. Kurtzman (1971), the Court established a three-prong test to determine if a governmental action is neutral toward religion. First, government institutions or legislation must have a secular purpose; second, the primary effect must be one that neither advances nor inhibits religion; and third, there must not be an excessive government entanglement with religion. This principle was further clarified by Associate Justice Sandra Day O'Connor in Lynch v. Donnelly (1984). She said, "What is crucial is that a governmental practice not have the effect of communicating a message of government endorsement or disapproval of religion."
The Supreme Court decisions provide an explanation of the rights and responsibilities granted by our Constitution. "Separation of church and state" is a constitutional principle that has been embraced by Supreme Court jurisprudence for more than one hundred years.
Those who insist upon denying the constitutional principle of "separation
of church and state" are engaging in revisionist history. "Separation
of church and state" is the prerequisite for religious and political
Copyright 1996 IFAS -- The Freedom Writer
Don't Say a Prayer for
by Mubarak S. Dahir
Freedom Writer, May 1996
Miss Burns had the most beautiful blonde hair I had ever seen. Most of the time she wore it high on the back of her head, spun into a tight bun. Sometimes she would wear it in a neat ponytail, pulled back taut in the front so no loose strands dangled in her face. In the back, it flowed silk-like in the groove created by her spine.
I was in love with Miss Burns. I was six years old. She was my first-grade teacher and I loved school almost as much as I loved her. Except for Mondays. I hated the first day of each week because I couldn't bear the way I always let Miss Burns down.
It was 1970, the time of Vietnam protests and free love and hot pants and rock and roll. And it was the year my family moved to Memphis, Tennessee, the home of Elvis, the crown of the Cotton Queen, and the heart of the Bible Belt.
Like all Americans, Miss Burns was worried about the future of the nation. She told us so. I know now that's why she was a teacher. She wanted to point young minds in the right direction, with the help of God.
Today, a quarter of a century later, she may be allowed to do it. The Republican majority in Congress has been talking about a constitutional amendment to re-introduce prayer to the public schools. And Bill Clinton has said he would consider such an amendment, that he's never been against prayer in schools, only coercion. I think back to my first school days with Miss Burns, and the lessons I learned about prayer and coercion.
On Monday mornings, right after class attendance and the Pledge of Allegiance, Miss Burns would turn to us and ask the same question. Week after week, I was the only student who failed to give the answer she was looking for.
"Who went to Sunday school yesterday?" she would inquire. "Raise your hand if you went to church," she instructed. As every other child's hand reached for heaven but mine, Miss Burns would gaze at me with a mix of pity and disappointment. And a wave of shame would wash over me as I drowned in the sea of upstretched arms.
Finally, I just wouldn't go to class on Mondays. I couldn't bear Miss Burns' pain or my own self-consciousness as the other kids raised their hands in the Monday morning ritual to God while I sat motionless, head bowed in embarrassment, not prayer.
If I prayed for anything then, it was to be like all the other kids. To be able to raise my hand with them, to finally make Miss Burns proud of me.
When Mom found out I had been skipping school on Mondays, she wanted to tie me down and whip me. When she found out why, she wanted to tie down and whip Miss Burns.
Dad took another approach. He was a Muslim raised in a Quaker school and now teaching at a Catholic university. He decided there was nothing wrong with taking me to Mass. It would be a good idea to expose me to other religions, to broaden my world view, he argued.
The following Sunday, Dad dressed me up in a blue suit and red bow tie. We went to the big church on campus, where a man in a black robe made us stand up then kneel, stand up then kneel. When we finally sat down, I fell asleep until Dad nudged me to drop my quarter into the silver bowl being passed down the aisle.
Sunday school was more fun. There were lots of other boys and girls, and there was lemonade and cookies. A nice woman who reminded me of Miss Burns, except her hair wasn't as pretty, told us stories. Stories from the Bible, of course, and I knew that would make Miss Burns happy because she was always talking about the Bible.
I was never so eager to go to school as the Monday after church. I couldn't sit still through roll call, and when we said the Pledge of Allegiance I could feel my heart pounding in my chest.
After the flag pledge, Miss Burns stood behind her desk and posed the faithful question. "Who went to Sunday school yesterday?" she asked. A look of surprise and delight danced across her face as my hand shot in the air with everyone else's.
"Why, Mubarak!" she exclaimed, pleased. "Where did you go?"
All grins, I announced I went to the big church on campus with my Dad, and I went to Sunday school, where they had lemonade and cookies and Bible stories.
I thought Miss Burns would be happy. I thought she'd be proud that I was finally like everyone else. But she was quiet when I finished my tale, and I could tell from the stillness that something was wrong. I wasn't going to heaven after all.
"Well, Mubarak, that doesn't really count," Miss Burns said slowly, trying to explain things to me.
I went home in tears that day, angry at Dad for screwing things up and taking me to a Catholic church instead of a real one, like the Baptist church Miss Burns went to.
The next morning, Mom went to school with me. Miss Burns was real pleasant and polite, as always. Mom was neither. I was mortified.
Mom made it loud and clear -- mostly loud -- that Miss Burns was not to ask me ever again if I had gone to Sunday school. We were Muslims and we did not attend Sunday school, but, Mom reminded Miss Burns, we did attend a public school.
Miss Burns listened to mother's angry words and calmly responded it was her duty to save my soul. Miss Burns was a Christian first, a teacher second.
Mom went to the principal's office, but he agreed with Miss Burns. It was their God-given duty to save my soul. It took the threat of a lawsuit before the keepers of Sharpe Elementary School agreed that maybe Miss Burns shouldn't ask her students who went to church on Sundays.
All we want as children is to be liked and to be like everyone else. The last thing we want is to be different. Knowing how left out and ashamed I felt in Miss Burns' class, I wonder how any school-sanctioned expression of religious belief could not be coercive. And I wonder what my mother could possibly have done or said to change the plight of her six-year-old son if the legal separation of church and state had been muddied by a constitutional amendment to allow state-sponsored prayer in schools.
We already have absolute freedom of religious expression. Children can pray in school -- or anywhere else -- whenever they so please. What we do not have -- and what we must not bring about -- is school-led, school-sanctioned religious ceremony. To do so would not be religious freedom, but the worst kind of religious coercion imaginable. It's exactly the kind of thing that so many Americans, especially Christians, came to this country to escape. It would be unethical, un-American and un-Christian to undermine that by promoting one religion over any other through prayer in the public schools.
We only stayed that one school year in Memphis. Dad found a teaching job in Pennsylvania, and we headed North.
When Mom came to pick me up the last day of school, Miss Burns was there with my report card and all my class projects. She gave me a big hug and a kiss, and started to cry, knowing she'd never see me again. She told Mom she would continue to pray for me.
I'm sure somewhere Miss Burns is still praying for me. I just hope it's
not in her classroom.
Copyright 1996 IFAS -- The Freedom Writer / email@example.com
Eight Years Later
by Valerie White, Esq.
The Freedom Writer -- December 1994
The Grinch --
Eight Years Later
by Valerie White, Esq.
In December of 1986, I began my career as the grinch who stole Christmas. A friend and I complained to county and village officials in Hyde Park, Vermont, the little town where I practice law, that the more-than-a-quarter-century-ol d tradition of decorating the village Christmas tree on the courthouse lawn with a lighted cross was unconstitutional. And tactless. "It's not a religious symbol," we were told. "It's a memorial for a local hero." But it conveys a wrong impression, we argued. It gives Jews and Jehovah's Witnesses and Zen Buddhists and atheists and Christians the feeling that their courthouse is a Christian place. The officials were unpersuaded.
I turned to the ACLU. (My friend has children in the school system and we agreed that I would carry on alone.) The ACLU lawyer wrote the officials. Their lawyer advised them. And in December of 1987 the cross topped the tree again, this time with a little sign at the foot of the tree: "The presence of any religious symbol on this secular display is not intended as an endorsement of religion." I filed in Federal Court for an injunction. The officials promptly erected a lighted Frosty the Snowman and Santa Claus, hoping to escape through the plastic reindeer loophole created by the United States Supreme Court in the Pawtucket case.
I began my Warholian 15 minutes of fame. "Donahue." "Sally Jesse Rafael." The New York Times, The Boston Globe, The Village Voice, The LA Times, radio, including West German Radio and the BBC. The Freedom From Religion Foundation made me Freethinker of the Year. I got mountains of mail, more pro than con. One letter was addressed, "The Cross Lady, Hyde Park." The post office put it in my box.
We went to court on December 1, 1987 for the preliminary injunction hearing. My attorneys were superb. Jonathan Chase, former dean of the Vermont Law School, ably drafted the pleadings but died of leukemia before the hearing. John Schullenberger, dedicated, diligent, knowledgeable, and able to keep cool under pressure, argued at the hearing. We won. The magistrate recommended the injunction be issued. The county and village gave in. They stipulated to an injunction. The court awarded attorney fees.
The courthouse tree every year since has gleamed its pagan lights amid the snow without a cross. And I can walk up the slippery sidewalk beside it with a solstice glow in my humanist heart that the Establishment Clause is alive and well in the U.S. District Court for the district of Vermont. Some time during the fray, I wrote some new words to "The Old Rugged Cross." I sang them for the Freedom From Religion Foundation when I accepted their award.
Then the ditty found its way onto the information superhighway through Larry Reyka's Little Coffeehouse, the humanist BBS. Then it escaped to a real coffeehouse in Columbus. And I learned the song was sung at the cabaret at the American Humanist Association meeting in Detroit.
As for me, my life has changed since 1986. I have become active in the freethought and humanist movement, and in the ACLU. Most of my neighbors have forgiven me. But the case has had one interesting effect.
During the litigation, community support for the cross was overwhelming.
A local florist made up greenery crosses threaded with fairy lights and
displayed them with the sign, "Show your support." People made
their own. Lighted crosses went up on the feed store elevator, the drive-in,
the antique store, the beauty parlor, silos, barns, and private homes all
over the county. I've thought they would slowly disappear. But last Christmas
I counted 25 lighted across on private property all over the county. I'll
bet Lamoille County, Vermont is the only place in the country where Christmas
is celebrated with so many lighted crosses. And isn't that a wonderful
demonstration of the Free Exercise Clause!
The Old Lighted Cross
To the tune of "The Old Rugged Cross"
On a tree in Hyde Park
Stands an old lighted cross
Violating our dear Constitution.
Though most love the cross
For their dearest and best,
I will call in the ACLU.
Yes, I'll sue on the old lighted cross.
Though beloved by county and town.
I will sue on the old lighted cross,
Though the village trustees they may frown.
On the tree in Hyde Park
We will keep the old cross
Defend it through suffering and tears.
For we love that old cross
For our dearest and best.
It has been there for 29 years.
Yes, we'll fight for the old lighted cross.
We'll defy Constitution and laws.
We will fight for the old lighted cross.
Never mind the Establishment Clause.
On the dear courthouse lawn
We will take down the cross,
From its place on the old Christmas tree.
Though we still think we're right
We will give up the fight.
To an order we'll sadly agree.
Yes, we'll take down the old lighted cross,
Though we'll never admit we were wrong.
We will take down the old lighted cross,
If she'll only stop singing this song!
What Does the
Supreme Court Say?
by Barbara Simon, Esq.
The most recent case decided by the Supreme Court re: religious displays on public property is the 1989 decision County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter.
In this case, there were two displays at issue. The first was a display of a creche depicting the Christmas nativity scene, placed on the main inside staircase of the Allegheny County Courthouse. Above the creche was a banner which stated "Glory to God in the Highest." The second display was an 18-foot Chanukah menorah placed next to a Christmas tree with a sign saluting liberty placed on the steps of the Pittsburgh City Hall.
Associate Justice Blackmun wrote that the effect of the Government's use of symbolism "depends upon its context" and that the task of the court is to determine whether in their "particular physical settings," either religious display has the effect of "endorsing or disapproving religious beliefs."
The Court held that the Establishment Clause required the overall display to be seen as conveying a "secular recognition of different traditions for celebrating the winter holiday season." The Court found that because the creche along with the banner above made it abundantly clear that it was endorsing Christian doctrine, it violated the Establishment Clause. However, the Chanukah menorah and Christmas tree were not found to violate the Establishment Clause because while the menorah is a religious symbol, its message is not exclusively religious.
In sum, the Supreme Court's standard of review for religious displays on public property is whether in their "particular physical setting" the religious display has the effect of "endorsing or disapproving religious beliefs."
On October 11th the Supreme Court refused to review a 9th Circuit US Court of Appeals decision, which found that a 43-foot cross, which rests on public lands overlooking the city of San Diego, California, is a "preeminent symbol of Christianity" and is therefore unconstitutional under a provision of California's constitution which forbids religious preference.
According to an October 12th report in The New York Times, the
long-running dispute regarding the 43-foot cross will enter a
new phase. Back in 1992, as a way of circumventing the Federal district
judge's ruling to remove the cross from public land, the city arranged
to sell 15 square feet of its public land to a private religious association.
The sale was deferred pending the outcome of the city's appeals. Peter
Irons, lawyer for the Society of Separationists, who brought the lawsuit,
said that his clients would be back in court challenging the sale. Irons
stated that the sale amounted to "privatization of the Constitution"
and called it a "transparent effort to evade the judge's order."
Copyright 1995 IFAS The Freedom Writer