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Separation of church and state

Recent U.S. court cases

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Recent developments

Of all the courts in the U.S., it is the Supreme Court that has the most definitive effect on church-state matters. But they often influence the culture more by inaction than by action. The justices of the Court only select for review some of the cases referred to them from lower courts. By electing to take no action on other cases, they let the decisions of those lower courts stand.

bullet1999-OCT-12: USA: U.S. Supreme Court announcement: The Court listed some of the cases from lower courts that it will study, and which they will let stand during its 1999-2000 term:
bulletThey are planning to review only one major church-state case so far. This is whether governments can fund computers and other instructional material which is to be used in parochial schools.
bulletThey let stand a number of decisions by lower courts:
bulletThe government of Maine's school voucher program remains constitutional. Although it subsidizes children who attend private non-religious schools, the law bars the state from directly paying children's tuition to religious schools. In its previous term, the court allowed a similar law to stand: In Wisconsin, the state pays school tuition indirectly: it gives vouchers to parents which they may use at any school of their choice -- religious or secular. 
bulletA special school district for Chasidic Jews in Kiryas Joel, NY remains unconstitutional. State legislators had created a separate school district so that students who are Chasidic Jews can go to their own school. They were ridiculed and discriminated against when they had attended regular public schools in the area. The state has unsuccessfully tried three times to pass legislation to enable what is in effect a religiously oriented public school in the area.
bulletA Pennsylvania state law regarding Bibles, other religious publications and religious articles remains unconstitutional. It exempted sales of such material by religious organizations from state taxes. 15
bullet1999-OCT-15: VA: Nativity display: Rita Warren, a resident of Fairfax VA, erects a personal nativity display at Christmas time in an circular, open, public area in front of a Fairfax County government building. The Fairfax County supervisors rewrote the country rules in 1996, to allow only individuals and organizations who resided in the county to use the circle. The Virginia chapter of the American Civil Liberties Union (ACLU) had objected in the past to Ms. Warren's attempts to put religious displays inside government buildings. This time, they sued on her behalf. They felt that the county rule was a direct violation of her 1st Amendment rights. They feel individuals should be able to freely use an open area in front of a government building, even those who wish to express religious beliefs. Rita Warren, the ACLU and the 1st Amendment all won in the Richmond VA Federal Appeals Court. The vote was 9 to 3. Judge J. Harvie Wilkinson III wrote, "Speech in America cannot be that parochial...Surely a speaker is entitled to spread the faith or the political gospel beyond the community in which she lives." County officials are not planning to appeal. 
bullet1999-DEC-17: IN: School posting of "common precepts": The Scott school board is planning to post a list of 11 "common precepts" in its six public school after 2000-JAN-1. They include "Trust in God," "Respect Authority," "Honor your parents and family members," "Save sex for marriage." The American Civil Liberties Union claims that these precepts are based on the Bible and should not be posted in public schools. School Board president Rod Colson said. "Everybody's agreed - we're not backing down." He feels that local parents are supportive of the idea.
bullet2000-APR-27: OH: State motto: According to AANEWS, "A three judge panel of the U.S.  6th Circuit Court of Appeals ruled 2-1 that the 41-year-old slogan violated the separation of church and state, and was a government endorsement of the Christian religion." The motto is: "With God, All Things Are Possible." [A direct biblical quotation from Matthew 19:26] Judge Avern Cohn wrote in the majority opinion: "In the context in which the words of the motto are found -- as the words of Jesus speaking of salvation -- to a reasonable observer, they must be seen as advancing, or at a minimum, showing a particular affinity for Christianity...Simply put, they are an endorsement of the Christian religion by the State of Ohio.  No other interpretation in the context of their presence in the New Testament is possible.  No amount of semantic legerdemain can hide the fact that the official motto of the State of Ohio repeats word-for-word, Jesus' answer to his disciples' questions about the ability to enter heaven, and thereby achieve salvation..." It is almost certain that the state will appeal the decision to the full Court of Appeals. More details
bullet2000-MAY-15: NY: Cancellation of tax-exempt status of church upheld: According to Freedom Forum
A church in Binghamton NY had taken out full-page newspaper ads in USA TODAY and the Washington Times calling for Christians to defeat Bill Clinton in the 1992 general election because of his stance on access to abortion, equal rights for gays, and distribution of condoms to public school students. The IRS revoked the church's tax exempt status. A federal appeals court panel unanimously ruled that the Internal Revenue Service did not violate the First Amendment rights of the church.

According to the Washington Post:
"Lawyers for the church say the ruling violated the church's free-speech rights and engaged in selective prosecution. All three judges on the appeals panel are conservatives appointed by President Reagan..."
According to ReligionToday:
"Under the ruling, a church still can set up a political action committee but no tax-deductible money can be used. First, church officials and lay supporters can set up a tax-exempt public advocacy group, which would have to be legally separate from the church. Then the advocacy group could establish a PAC." Presumably, this route would be possible for any church or other non-profit agency.
bullet2000-MAY-15: WI: Statue of Jesus: According to Maranatha Christian Journal: 18
A statue of Jesus was unveiled in 1959 in the Praschak Wayside Park of Marshfield WI. In 1998, the Freedom From Religion Foundation (FFRF) sued the city because the presence of the statue on city land was an obvious violation of church and state separation. This lawsuit was dismissed after the city circumvented the constitutional problems by selling a small part of the park which contained the statue to a private citizens' group. Since the small plot of land was not differentiated in any way from the rest of the park, FFRF asked that the judge order a ten foot high wall around the statue so that it could not be seen by passers-by. The judge accepted the city's proposal for a four foot high wrought iron fence with a "Private Park" sign to differentiate the private land from the public park. 

Francis Manion, of the American Center for Law and Justice, a Fundamentalist Christian legal group, said that the decision was "a victory for common sense in an area of the law where [it] is all too often forgotten...Groups like Freedom From Religion Foundation need to understand that the First Amendment protects freedom of religion--and does not mandate freedom from religion."

The original article on the statue was apparently published by the Charisma News Service. It incorrectly identified the FFRF as an "atheists' group" The FFRF describes itself as a group of "freethinkers - atheists, agnostics, secularists, humanists, rationalists." 19 We suspect that they also have many Christians and other theists among their members, who are concerned with church-state separation issues.

bullet2001-MAR-16: OH: State motto: According to AANEWS: The full 6th U.S. Court of Appeals reversed a 2:1 decision of its own three judge panel and declared the Ohio motto "With God All Things Are Possible" from Matthew 19:26 to be not a religious slogan and not a violation of the separation of church and state. They ruled that this motto did not differ from other similar references to God, like the new national motto "In God We Trust."  More details
bullet2001-SEP-24: CA: Prayer limited in Burbank city council: For decades, the Council has invited leaders from various faith groups to offer an opening prayer. A citizen in the audience objected to one prayer which ended "In the name of Jesus Christ." He filed a lawsuit. A judge of the Los Angeles Superior Court ruled against the city, ordering council to monitor the content of future prayers. Apparently, prayers to a "God" are allowable because of the near universal belief in a God, Gods, Goddesses etc. But prayers to Jesus are too specific, and conflict with the beliefs of a large minority of people. The city council voted unanimously to appeal the ruling. In 2002-SEP, they lost the appeal to the state's Second District Court of Appeal who said that  20
bullet2002-JUL-24: NV: Lone cross on public land: An eight-foot-tall cross is situated on the Mojave National Preserve in San Bernardino County between Barstow, CA and Las Vegas, NV. Its purpose was to honor Christian veterans of World War I. The American Civil Liberties Union (ACLU) has initiated a lawsuit arguing that the cross violated the Constitution because it was a religious symbol on public land.

The U.S. Supreme Court has decided to hear the case, now called Salazaar vs. Buono, in 2009-OCT. It is a vary important case because it is the first opportunity for the Roberts Court to decide a case that directly involves the 1st Amendment's establishment clause. 27 More details

bullet2002-SEP-9: CA: Prayer limited in Burbank city council: See background on this story above. A three-judge panel of the state's Second District Court of Appeal upheld a prior decision of the Los Angeles Superior Court. Both declared that prayers which are given before council meetings are unconstitutional if they promote any one faith or belief over another. The case originated in a 1999 meeting of the Burbank council in which a Christian minister prayed "in the name of Jesus Christ."

"The expression of gratitude and love 'in the name of Jesus Christ' was an explicit invocation of a particular religious belief," Judge Katherine Doi Todd wrote: "The invocation conveyed the message that the Burbank City Council was a Christian body and from this it could be inferred that the council was advancing a religious belief." 22

bullet2005-JUN-08: VT: Conflict over religious license plate: Shawn Byrne requested a custom license plate for his 1966 Ford pickup which read "JN36TN" and referred to John 3:16, one of the most popular exclusivist passages in the Christian Scriptures (New Testament). In the King James Version, it reads: "For God so loved the world, that he gave his only begotten Son, that whosoever believeth in him should not perish, but have everlasting life." The Department of Motor Vehicles denied his request on the basis that state regulations prohibits license plates of a religious nature. Vermont Assistant Attorney General, Harvey Golubock, said: "The state doesn't want to be in the business of endorsing a particular religion or deity. He could paint it on the side of a car -- the state wouldn't have a problem with that." Byrne has sued the state. Jeremy Tedesco of the Alliance Defense Fund who represented Byrne, said: "This is a straightforward case of viewpoint discrimination. The message is associated with the person behind the wheel." Judge Jerome Niedermeier said that he wasn't sure that most people would realize what the collection of letters and numbers meant. He said: "It takes a little mental gymnastics to get to the point of what it refers to."
bullet2005-NOV-30: IN: Federal court judge bans sectarian prayer in House: Judge David Hamilton issued a ruling on NOV-30 covering the prayers delivered by volunteer clergy at the opening of daily sessions of the Indiana House of Representatives. He noted that "....prayer opportunities have frequently and consistently been used to advance the Christian religion." He barred future prayers that endorse any specific religion. He based his decision on a 1983 ruling of the U.S. Supreme Court which was in turn based on the principle of the separation of church and state. Judge Hamilton said that those delivering prayers:

"...do not have a First Amendment right....to use an official platform like the Speaker's podium....to express their own religious faiths....If the Speaker chooses to continue to permit nonsectarian prayers as part of the official proceedings, he shall advise all persons offering such prayers...that the prayers must be non-sectarian and must not be used to proselytize or advance any one faith or belief or to disparage any other faith or belief....The prayers should not use Christ's name or title or any other denominational appeal."

The court challenge was triggered by Rev. Clarence Brown, of Second Baptist Church in Bedford, IN. He led the House in singing "Just a Little Talk with Jesus." It caused some offended representatives to leave the House.

Reaction to Judge Hamilton's decision was mixed:

bulletRichard Walton of the Indianapolis Star wrote that: "Dozens of religious leaders, including Christians, have signed a statement saying that House prayers should honor religious diversity."
bulletThe speaker of the House, Rep. Brian Bosma, (R-Indianapolis), called the ruling "intolerable," "terrible," and "shocking." He said: "This is an intolerable decision I hope cannot stand." He has challenged Judge Hamilton's ruling, but will follow the decision until his challenge is resolved.
bulletRabbi Jon Adland of the Indianapolis Hebrew Congregation, was pleased with the decision. He said: "if you're going to have prayer it has to be inclusive of all people."
bulletFormer House Speaker B. Patrick Bauer, (D-South Bend) apparently misunderstood the Judge's ruling. He said: "I think it's untenable. It's a question of excluding all religions, and that's where the error lies. I don't think you forsake religion."
bulletImam Umar Al-Khattab, of the Masjid Al Fajr on Cold Spring Road, said that it is reasonable to ask religious leaders to offer House prayers applicable to all faiths. "When you say Jesus or Buddha that's exclusive." he said.
bulletRev. Clarence Brown of Bedford, who led the House in singing a Christian hymn believes that the decision "infringes on the Christian." 24
bulletThe Family Research Council, a conservative Christian advocacy group, commented: "Thanks to Judge Hamilton, the Indiana House of Representatives now joins Saudi Arabia as one more place where Jesus's name cannot be honored in an official ceremony. The numbers of anti-Christian rulings like this one from Judge Hamilton are multiplying." 25
bullet2005-DEC-05: NC: Swearing an oath on a Qur'an: During 2003, Syidah Mateen, a Muslim in Greensboro NC, was refused permission to take an oath on a Qur'an as a witness in a domestic violence protection order hearing. North Carolina laws states that a person can swear either on the "Holy Scriptures" or can affirm to tell the truth while holding their hand upright. To a Muslim, the Qur'an is the Holy Scripture. But two judges at the Guilford Country courts decided that "Holy Scriptures" meant the Hebrew and Christian Scriptures (a.k.a. the Holy Bible.) The judges later refused to accept a gift of Qur'ans from a Greensboro Islamic Center. The state Administrative Office of the Courts declined to intervene. The American Civil Liberties Union of North Carolina then launched a lawsuit to ask that the law implies that any Holy Scriptures are acceptable. According to the News-Record:

"During a brief hearing in Wake County Superior Court on Monday, Assistant Attorney General Grady L. Balentine Jr. didn't argue that the plaintiffs lacked the right to sue. Instead, he argued solely that state oath-taking law is constitutional because it allows people to affirm if they don't wish to swear on the Christian Bible. 'No one is required to do that,' he told Superior Court Judge Donald L. Smith. 'That's our only position in this case'." 26

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Related essays

bulletWhat the Bible says about public prayer
bulletSeparation of church and state issues
bulletReligious symbols used by municipalities and states
bulletPosting of the Ten Commandments in schools and government offices
bulletThe Istook Constitutional Amendment: 1995-1996
bulletThe Istook Constitutional Amendment: 1997-1999
bulletOrganizations dealing with separation issues
bulletChristian boycott of the U.S. Army

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The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Religion Today news summary, 1999-MAR-19.
  2. "Appeals court bans prayers at high school games," Maranatha Christian Journal, posted 1999-MAR-11
  3. "Adler et al v. The Duval County School Board" at: http://www.law.emory.edu/
  4. American Civil Liberties Union, ACLU Newsfeed, 1999-MAY-14
  5. Anne Hamming, "Council halts raising of cross on Fourth of July," The Muskegon Chronicle, 1999-JUN-15. http://mu.mlive.com/
  6. Clarence Page, "Bewitching logic: All religions or none should be tolerated on military bases," Salt Lake Tribune, Salt Lake City, UT, 1999-JUN-17. See: http://www.sltrib.com/
  7. Joe Holley, "A genuine witch hunt," U.S. News & World Report, 1999-JUN-14. See: http://www.usnews.com/
  8. Kim Sue Lia Perkes, "Until Army rejects Wicca, 13 groups call for boycott," American-Statesman, Austin TX, 1999-JUN-10 at: http://www.statesman.com/
  9. "Education Secretary statement on Ten Commandments House vote," U.S. Newswire, 1999-JUN-18.
  10. Alan Dershowitz, "Ten Commandments aren't gun control," Los Angeles Times, 1999-JUN-20. See: http://www.latimes.com:  
  11. A web site devoted to the principle of separation of church and state is at: http://members.tripod.com/ 
  12. T. Davies & G. Hartley, "Judge rules against republic on religious fish symbol," MSNBC, at: http://www.msnbc.com/
  13. B.G. Walker, "The Woman's Dictionary of Symbols & Sacred Objects," Harper San Francisco, (1988), Page 374
  14. Baptist Press, "Town removes Christian symbol from seal," 1999-JUL-22. On line at: http://www.mcjonline.com/
  15. Daniel Kurtzman, "Supreme Court refuses to tamper with church-state separation rulings," Jewish Telegraphic Agency (JTA) at: http://www.jta.org
  16. "Atheist looking for answers on nativity scene," Akron Beacon Journal, Akron OH. Online at: http://www.ohio.com
  17. "Clergy distressed over Mass. display mixing Santa, Nativity; fears of Witches, 'Devil Worshippers' raised," American Atheists,  http://www.atheists.org/
  18. Charisma News Service, "Jesus statue doesn't have to be hidden, judge rules," 2000-MAY-15. On line at: http://www.mcjonline.com/
  19. The Freedom from Religion Foundation has a web site at: http://www.ffrf.org 
  20. Stuart Shepard, "Judge: No Prayers to Jesus," at: http://family.org/
  21. John Welsh, "Ruling may mean end of Mojave cross: LAWSUIT: The ACLU convinces a judge that a religious symbol has no place on public land," The Press-Enterprise at: http://www.pe.com/
  22. Dan Witcomb, "California gets tough with Jesus," 2002-SEP-9, at: http://story.news.yahoo.com/
  23. "Religious Reference Denied for Use on Vanity Plate," Citizen Link, Focus on the Family, 2005-JUN-08.
  24. Richard D. Walton, "House prayers can't invoke Jesus. Federal judge declares that invocations advancing a specific religion are unconstitutional," Indianapolis Star, 2005-DEC-01, at: http://www.indystar.com/
  25. Tony Perkins, "To pray or not to pray," Family Research Council, Washington Update, 2006-JAN-03.
  26. Eric Collins, "Decision expected today in Quran controversy," News-Record, Greensboro, North Carolina, 2005-DEC-06, at: http://www.news-record.com/
  27. "Supreme Court to hear Mojave cross case," Los Angeles Times, 2009-FEB-24, at: http://www.latimes.com/

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Links to web sites which deal with separation issues:

bullet"The Constitutional Principle: Separation of Church and State," at: http://members.tripod.com/ is a web site that is totally devoted to this topic.
bulletThe above site has a list of links to other Internet locations dealing with separation of church and state. See: http://members.tripod.com/ 

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Copyright © 1998 to 2009 by Ontario Consultants on Religious Tolerance
Original publishing date: 1998-AUG-5
Latest update: 2009-FEB-27
Author: B.A. Robinson

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