‘Separation of Church and State’ is a frequently used phrase and is probably one of the most debated Constitutional issues. ‘The separation of church and state is a concept in law whereby the structures of state or national government are kept separate from those of religious institutions.’[1]  Although the exact phrase does not appear in the Constitution, the debate centers on wheather or not certain actions of the government interfer with the standards put forth by the Constitution on keeping government separate from religion.    

 

Prior to the adoption of the First Amendment in 1791, religion was mentioned in theConstitution in Article IV which stated that ‘no religious test shall ever be required as a qualification to any office or public trust in the United States.’[2]  The issue of religion was only again introduced into the Constitution when the Bill of Rights was adopted.  The First Amendment of the Bill orRights states, ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…’ According to the First Amendment Center; ‘Taken together, these two clauses safeguard religious liberty by protecting religions and religious convictions from government interference or control.  They ensure that religious belief or non-belief remains voluntary, free from government coercion.’[3]  While these freedoms were guaranteed, the language of the First Amendment remained ‘vague and open to interpretation.’[4] 

 

The first known reference to the separation of church and state is in a letter PresidentThomas Jefferson wrote to the Danbury Baptist Association of Connecticut in1802.  In that letter President Jefferson wrote, ‘…I contemplate with solemn reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church and State…’[5]  Since this letter was written the phrase ‘a wall of separation between Church and State,’ has become a largely debated one.  In the Supreme Courtcase Everson v. Board of Education, the Supreme Court unanimously affirmed in 1947 the separation of church and state and used President Jefferson’s letter for the court opinion when it ruled that state reimbursement for bus fares to attend religious schools was unconstitutional.[6]  In his opinion Justice Black wrote, ‘That wall must be kept high and impregnable.’  This was a landmark case and the Supreme Court has used the1947 decision many times in matters involving separation of church and state.[7]  Below is a survey of current debates concerning issues of separation of church and state.

 

Charitable Choice

 

In 1996 PresidentBill Clinton signed the Welfare Reform Act which included an amendment sponsored by then Senator, now Attorney General, John Ashcroft, which enabled religious organizations to receive tax dollars for delivery of social services such as job training, mentoring programs, child care etc.  This provision, known as the‘charitable choice’ provision allowed religious charities to seek government twelfare funding.[8]  ‘Charitable Choice’ permits all faith-based organizations to compete for government social service funding, regardless of their religious nature. Thus ‘charitable choice’ significantly broadens the scope and extent of government financial collaboration with faith-based organizations.’[9]  On January 29, 2001 the concept of charitable choice was further integrated into government when President George W. Bush issued an executive order that established the White House Office of Faith-Based and Community Initiatives. According to the White House website the Office of Faith-Based and Community Initiatives was created to strengthen and expand ‘the role of faith-based and community organizations in addressing the nation's social problems. The President envisions a faith-friendly public square where faith-based organizations can compete equally with other groups to provide government or privately-funded services.’  Also according to the website, ‘President Bush also created Centers for Faith-Based and Community Initiatives in seven cabinet departments - the United States Departments of Justice,  Agriculture, Labor, Health and Human Services, Housing and Urban Development, and Education and the Agency for International Development - to promote the Initiative’[10] 

 

Critics argue that President Bush’s faith-based initiative does not have clear enough protections against proselytizing and discrimination in hiring.[11]  On February 4, 2004 under a veto threat from the White House, the U.S. House of Representatives voted for provisions in the Community Services Block Grants Act (H.R. 3030) that allow job discrimination based on religious affiliation in publicly funded programs by religious organizations.[12]  This means that religiously based organizations can discriminate when hiring for positions within their organizations even if they are receiving government funding.  According to the Washington Times, the Bush Administration gave nearly 500 faith-based programs $477million in 2002 and 680 programs $568 million in 2003.[13] 

 

Prayer and Politics

 

In the U.S., religious prayer is currently accepted in a variety of political settings, such as courtrooms, legislative proceedings, and inaugurations.  While the practice of prayer is widely accepted, it has periodically been challenged both in the courts and in public opinion.  Historically, the nation’s past presidents and politicians have held mixed opinions about the place of religious prayer in political life. 

 

The first National Day of Prayer was declared by the Continental Congress in 1775.  Since then, presidents throughout U.S.history have declared National Days of Prayer.  However, Thomas Jefferson opposed declarations of national days of prayer by the federal government, saying that such things were better left to ‘religious society.’[14]  In 1863, Abraham Lincoln signed a Congressional resolution which called for a day of fasting and prayer, while in1999 Jesse Ventura, then governor of Minnesota, refused to endorse the National Day of Prayer in an effort to respect the diversity of religious belief and non-belief among Minnesota’s citizens.[15]  The National Day of Prayer has been set by Congress as the first Thursday in May. Currently, the National Day of Prayer is organized by the National Prayer Committee, a private Christian organization.  Ms. Vonnette Bright, one of the leaders of the Committee, has defended the exclusivity of the event, which critics say fails to represent the diversity of religions practiced in the U.S.  Ms. Bright did not apologize for the lack of representation of Muslims and others outside the ‘Judeao-Christian tradition,’ and instead said that ’they are free to have their own national day of prayer if they want to.’  [16]  While the event has drawn the support of various politicians, the National Prayer Committee has not been officially appointed by the government to organize this event.  Opponents of the event also add that it falls outside the role of government and violates the separation of church and state.[17]

 

Prayer is a fixture in the life of the U.S. Congress. The House of Representatives and the Senate each have their own chaplain.  The first chaplains were elected by members of the House and Senate in 1789.  In 1853, the House received several requests that the offices of chaplain in the ’army, navy, at West Point, at Indian stations, and in both houses of Congress, be abolished.’[18]  The argument was that the chaplain’s tax-dollar-supported salary violated the constitutional provision for the separation of church and state. After some debate, the House Judiciary Committee ruled that the chaplaincy was constitutional.  Today congressional chaplains continue to lead the prayer that opens each day’scongressional proceedings.  In addition, the Chaplain of the House and the Senate Chaplain provide pastoral counseling to the congressional community, arrange memorials services, and assist congressional staff with research on theological and biblical questions,  among other duties.  Both the House and the Senate host weekly prayer breakfasts.  Currently, the Rev. Daniel P. Coughlin, a Roman Catholic, is the Chaplain of the House, and Chaplain Barry C. Black, a Seventh-day Adventist, is Chaplain of the Senate.

 

The Supreme Court examined the issue of legislative prayer in Marsh v. Chambers (1983).  In this case, amember of the Nebraska state legislature brought a suit against the legislature, alleging that its state-funded chaplaincy violated the Establishment Clause ofthe First Amendment.[19]  However, in a 6-3 decision, the Supreme Court ruled that the U.S. has a history of legislative prayer which authorizes the appointment of chaplains in the country’s lawmaking bodies.  The Court ruled that the office of legislative chaplain acknowledges religious beliefs widely held by the American public.

 

Education

 

On January 22, 2004 Congress approved the country’s first federal school-voucher program allocating $13 million to establish a program for low-income students in the District of Columbia.  The plan would give private-school vouchers to at least 1,700 poor students in the district.[20]  Although many states have school voucher programs the program in the district is the first federally funded school voucher program.  This decision has added to the growing controversy over allowing public funding to be used for religiously affiliated schools, which is seen by some as a violation of the First Amendment’s establishment clause and Supreme Court decisions. 

 

In 1995, because of Cleveland’s deteriorating school system, the state of Ohio proposed many initiatives to improve schools in the city.  Providing students with school vouchers was one of the initiatives proposed.[21]  After the initiative passed, more than 3,700 of the city’s students, nearly 5% of the public school enrollment, used vouchers.  The vast majority of the vouchers were used at more than 50 religious schools—Roman Catholic, Lutheran, Baptist, Islamic and Seventh-Day Adventist.[22]  After a lawsuit was filed regarding the constitutionality of this program, Zelmanv. Simmons-Harris,in 2002 in a 5-4 decision the Supreme Court ruled that the Cleveland program allowing parents to use publicly funded vouchers to pay tuition at private schools, including religious schools, does not violate the U.S. Constitution’s prohibition on governmental establishment of religion.[23]  This decision ended some debates but also started new ones. 

 

There are still many challenges in courts regarding the allowance of school vouchers tobe used for religious schools.  On August5, 2002, a Florida state court ruled that the state’s voucher program violated Florida’s constitutional bar on using public funds to aid religious organizations.[24]  In February of 2004 the Supreme Court ruled 7-2 that the state of Washington was within its rights to deny a taxpayer-funded scholarship to a needy student who wanted to major in pastoral ministries.  Like 36 other states, Washington prohibits spending of public funding on religious education.[25]  These are only some of the recent decisions passed regarding the separation of church and state and the role of school vouchers. 

 

Government Funding of Religious Hospitals

 

In 2001, religious hospitals in the United States received over $40 billion ingovernment funding.[26]  Despite financial support from the government, religious hospitals are allowed to refuse to provide certain essential health services based on religious doctrine, primarily reproductive health care and end-of-life services. Although religious hospitals often claim to better serve the poor, a study by The Merger Watch Project, a division of Family Planning Advocates ofNew York State, found that religious hospitals do not provide more services tothe poor than nonreligious nonprofit or private hospitals.  In fact, in some cases, they provideless.[27]

 

Religious hospitals are 13% of hospitals nationwide and 18% of hospital beds.[28]  Due to consolidation in the hospital industry, more and more patients are in the position of seeking health care services from a religious hospital. If patients are seeking reproductive health or end-of-life services, care in a religious hospital significantly limits the choices they can make.  Religiously-affiliated hospitals in the Untied States have been granted exemptions by the government which allow them to use religious doctrine to guide patient care.  A federal law called the Church Amendment cuts restrictions that might have been attached to federal funding.[29]  Not only does this limit patient care; it also limits health insurance coverage available to employees of religious hospitals.

 

Religious Symbols in Public Places

 

A recurring conflict in the church and state debate centers on the presence of religious symbols in public places.  The courts have handed down a variety of decisions on the constitutionality of Nativity scenes, menorahs, and postings of the 10 Commandments on government property.  The Supreme Court, in Lynch v. Donnelly (1983), found that a Christmas crèche organized by the government of the City of Pawtucket, RI did not violate the First Amendment.  It ruled that the display, which include secular symbols like candy-striped poles, a wishing-well, and reindeer, merely recognized ‘the historical origins of this event long [celebrated] as a National Holiday,’ and that its primary effect was not to advance religion.’[30]

 

However, in County of Allegheny v. ACLU Greater Pittsburgh Chapter (1989), the Supreme Court ruled that a Nativity scene outside the Allegheny County Courthouse was not constitutional while a menorah outside the City-County Building was constitutional. Unlike Lynch v. Donnelly, the crèche in this case was not displayed with seasonal, secular decorations, which gave the display a religious purpose.  Unlike the Nativity scene, the menorah was found to be constitutional because it was displayed alongside a Christmas tree and a sign saluting liberty, merely celebrating the holiday season rather than endorsing any particular religion.[31]

 

In Stone v. Graham (1980), the parent of a child inthe Kentucky public school system brought a suit challenging a state law requiring the posting of the Ten Commandments in each public school classroom.  The copies of the Ten Commandments were funded by private contributions and at the bottom of each copy, a note cited the Commandments as the foundation of the legal code of Western civilization and U.S. common law. The Supreme Court found the Kentucky law unconstitutional saying that the postings served no educational function and were clearly religious inintent.[32]

 

In 2003, after failing to comply with numerous federal court orders, Justice Roy Moore was removed from the bench in Alabama for refusing to remove a 5,280-pound monument to the Ten Commandments, which he had placed in the Alabama state judicial building.  Opponents of the monument argued that it was purely religious symbol with no place in a government building, that Judge Moore’s action failed to abide by Supreme Court decisions on public displays of the Ten Commandments, and that the display violated the Establishment Clause of the First Amendment.  A judicial ethics panel found him guilty of six violations of the Canons of Judicial Ethics, including failure to respect and comply with the law and failure to uphold the integrity andindependence of the judiciary. [33]

 

What Does the Public Think about Separationof Church and State Issues?[34] 

 

• 78% of Americans say government-funded religious groups should not be able to hire only people who share their beliefs to staff programs. 
  –Pew Forum on Religion and Public Life
• Only 38% of Americans thought Muslim mosques should get aid, while the same number supported help for Buddhist temples.
   --Pew Forum on Religion and Public Life
• 7 in 10 Americans approve of the display of a Ten Commandments monument in a public area. 
  –The Gallup Organization
• 72% of Americans favor the use of school vouchers for religious schools while 26% are opposed. 
  –The Gallup Organization
• 68% of Americans worry that faith-based programs might lead to too much government involvement with religion. 
  –Pew Forum on Religion and Public Life
• 6 out of 10 Americans are concerned that publicly funded religious groups would proselytize recipients of social services. 
  –Pew Forum on Religion and Public Life
• 75% of Americans support the idea of funding religious groups to provide social services but most Americans would not extend that right to non-Judeo Christian groups, such as Muslims, Buddhists, Nation of Islam, or the Church of Scientology. 
  –Pew Forum on Religion and Public Life