The Quest for Separation of Church and State

I admit that Secularists, including me, seek to cleanse the public square of government sponsored religion.  While we individually, and even as part of a group, have the rights of free exercise of religion and free speech in public squares, we do NOT have a right under the First Amendment to use the instruments of government to aid, promote or endorse religion.  The Constitution not only doesn’t grant government any religious powers, the First Amendment specifically prohibits any governmental act “respecting an establishment of religion.”  In short, government is prohibited from preferring one religion over another, religion over nonbelief or nonbelief over religion. The only realistic way of achieving this mandate is for government to stay out of the religious sphere.

A week ago (Nov. 6), Americans United for Separation of Church and State argued the case Town of Greece v. Galloway before the Supreme Court. Americans United is seeking to require the Town of Greece to limit prayers before its town council to be “nondenominational.” Similarly, in 2005 the ACLU sued Cobb County, Georgia to require the prayers before its meetings to be nonsectarian.  The ACLU lost its case (Pelphrey v. Cobb County (11th Cir. 2008)). It would take a miracle for Americans United's to win because, quite frankly, the Court is stacked with Dominionists who favor some forms of government sponsored religion.  There is also a practical side -- courts don’t to be religion police.

But here's my problem with the case. As an attorney who practiced church-state law and as an Atheist, it is shocking that Americans United and the ACLU – both groups while purporting to support the principle of church and state are actually are or have taking litigation positions that infuse religion into government, albeit of a watered down variety.

Why don’t Americans United and the ACLU sue to prohibit governmental entities from opening any of their meetings with a prayer?

I can think of two reasons why the organizations do not. First, they are afraid that an adverse decision will embolden legislatures, boards and councils to become even more sectarian. And second, they are afraid of alienating a significant number of their members.  

Government sponsored prayer is their only hypocrisy. Neither Americans United nor the ACLU will stand up and fight these church-state violations:

• Eliminate congressional chaplains.
• Administer the presidential oath without “So help me God.”
• End the Supreme Court’s practice of opening its sessions with “God save the United States and this honorable Court.”
• Remove “under God” from the Pledge of allegiance.
• Repeal “In God We Trust” as our national motto. 

I call upon our branches of government to cease and desist from engaging in the above unconstitutional establishments of religion so that all Americans – both the religious and nonreligious – can enjoy the rights and privileges of being an American.

I also hope that Americans United and the ACLU will take notice that until the above infringements are remedied, religious freedom will be incomplete.  Congress, the President and the Supreme Court serve as role models for the rest of the nation and if they can violate the Constitution, other governmental entities will feel that they can too.

[Note: I have been a member of the ACLU for over 40 years and a member of Americans United for many years. Tho I support the overall mission and programs of both groups, I feel that it is important to speak out about what I view to be their major weakness – their failure to advocate for complete separation religion and government.  I also served as co-counsel with Michael Newdow in Newdow v. Roberts which challenged the religious practices of the 2009 presidential inaugural ceremony.]

35 United States Supreme Court Majority Opinions Demonstrating Mandate For Religious Neutrality

Loosing is not fun, but loosing because a court ignored established law is especially discouraging.  Mike Newdow and I filed a lawsuit in December 2008 on behalf of over 250 plaintiffs challenging the religious practices of the 2009 presidential inaugural ceremony. One of the documents we filed in the course of the litigation was a list of Supreme Court cases in which the majority recognized the First Amendment mandate for religious neutrality. [1] Tho we lost the case, I remain convinced that the Constitution requires government to be neutral in matters of religion and that we should have won on the merits had the district and appeals courts not exhibited extreme bias.

I offer the list for your consideration:

1.     McCreary County v. ACLU, 545 U.S. 844, 860 (2005) – “The touchstone for our analysis is the principle that the ‘First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.’”

2.     Cutter v. Wilkinson, 544 U.S. 709, 720 (2005) – courts “must be satisfied that the Act’s prescriptions are and will be administered neutrally among different faiths”

3.     Zelman v. Simmons-Harris, 536 U.S. 639, 652 (2002) – “[W]here a government aid program is neutral with respect to religion … the program is not readily subject to challenge under the Establishment Clause.”

4.     Good News Club v. Milford Cent. Sch., 533 U.S. 98, 114 (2001) – “[W]e have held that “a significant factor in upholding governmental programs in the face of Establishment Clause attack is their neutrality towards religion.”

5.     Mitchell v. Helms, 530 U.S. 793, 809 (2000) – “In distinguishing between indoctrination that is attributable to the State and indoctrination that is not, we have consistently turned to the principle of neutrality.”

6.     Agostini v. Felton, 521 U.S. 203, 234 (1997) – “We therefore hold that a federally funded program providing supplemental, remedial instruction to disadvantaged children on a neutral basis is not invalid under the Establishment Clause ...”

7.     Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 839 (1995) – “A central lesson of our decisions is that a significant factor in upholding governmental programs in the face of Establishment Clause attack is their neutrality towards religion.”

8.     Bd. of Educ. v. Grumet, 512 U.S. 687, 696 (1994) – “‘A proper respect for both the Free Exercise and the Establishment Clauses compels the State to pursue a course of ‘neutrality’ toward religion.’”

9.    Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 8 (1993) – referencing “government programs that neutrally provide benefits”

10.   Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 533 (1993) – “A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernible from the language or context.”

11.   Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 393 (1993) – “[T]he total ban on using District property for religious purposes could survive First Amendment challenge only if excluding this category of speech was reasonable and viewpoint neutral.”

12.   Bd. of Educ. of Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 251 (1990) – Government act is constitutional if it “evinces neutrality toward, rather than endorsement of, religious speech.”

13.   Jimmy Swaggart Ministries v. Board of Equalization, 493 U.S. 378, 384 (1990) – noting “‘the constitutional requirement for governmental neutrality.’”

14.   Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 13 (n.2) (1989) – referencing “‘the policy of neutrality’”

15.   Bowen v. Kendrick, 487 U.S. 589, 609 (1988) – recognizing the requirement that “the challenged statute appears to be neutral on its face.”

16.   Corporation of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 335 (1987) – “Lemon’s ‘purpose’ requirement aims at preventing the relevant governmental decisionmaker -- in this case, Congress -- from abandoning neutrality and acting with the intent of promoting a particular point of view in religious matters.”

17.    School Dist. v. Ball, 473 U.S. 373, 382 (1985) – “The solution to this problem adopted by the Framers and consistently recognized by this Court is jealously to guard the right of every individual to worship according to the dictates of conscience while requiring the government to maintain a course of neutrality among religions, and between religion and nonreligion.”)

18.   Wallace v. Jaffree, 472 U.S. 38, 60 (1985) – recognizing “the established principle that the government must pursue a course of complete neutrality toward religion.”  Cf. “the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all.” At 53.

19.    Mueller v. Allen, 463 U.S. 388, 398-99 (1983) – “a program ... that neutrally provides state assistance to a broad spectrum of citizens is not readily subject to challenge under the Establishment Clause.”

20.   Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983) – upholding “policy … founded on a ‘neutral, secular basis.’”

21.   Larson v. Valente, 456 U.S. 228, 246 (1982) – “This principle of denominational neutrality has been restated on many occasions.”  “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” (At 244)

22.   Widmar v. Vincent, 454 U.S. 263, 274 (1981) – denying challenge because “the University’s policy is one of neutrality toward religion.”

23.   Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 720 (1981) – a noting “the governmental obligation of neutrality in the face of religious differences.”

24.    McDaniel v. Paty, 435 U.S. 618, 629 (1978) – noting the Establishment Clause’s “command of neutrality.”

25.    Meek v. Pittenger, 421 U.S. 349, 372 (1975) – requiring “that auxiliary teachers remain religiously neutral, as the Constitution demands.”

26.   Comm. for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 792-93 (1973) – “A proper respect for both the Free Exercise and the Establishment Clauses compels the State to pursue a course of ‘neutrality’ toward religion.”

27.   Wisconsin v. Yoder, 406 U.S. 205, 220 (1972) – noting “the constitutional requirement for governmental neutrality.”

28.   Tilton v. Richardson, 403 U.S. 672, 688 (1971) – approving of “facilities that are themselves religiously neutral.”

29.    Lemon v. Kurtzman, 403 U.S. 602, 618 (1971) – recognizing the mandate for “remaining religiously neutral.”

30.   Gillette v. United States, 401 U.S. 437, 449 (1971) – “[W]hat is perhaps the central purpose of the Establishment Clause [is] the purpose of ensuring governmental neutrality in matters of religion.”

31.    Epperson v. Arkansas, 393 U.S. 97, 103-04 (1968) – “Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice.  It may not be hostile to any religion or to the advocacy of noreligion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.”

32.    Sherbert v. Verner, 374 U.S. 398, 409 (1963) – noting “the governmental obligation of neutrality in the face of religious differences.”

33.    Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 215 (1963) – “examining this ‘neutral’ position in which the Establishment and Free Exercise Clauses of the First Amendment place our Government.”

34.    Engel v. Vitale, 370 U.S. 421, 443 (1962) – “The First Amendment leaves the Government in a position not of hostility to religion but of neutrality.”

35.    Everson v. Bd. of Education of Ewing Township, 330 U.S. 1, 15 (1947) – “Neither [a state nor the Federal Government] can pass laws which which aid one religion, aid all religions, or prefer one religion over another.”  Also, “[The First Amendment] requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions, than it is to favor them.” At 18.

In addition, the plurality opinion in Van Orden v. Perry, 545 U.S. 677, 684 (2005) discusses “‘the very neutrality the Establishment Clause requires.’” Justice Breyer provided the fifth vote in Van Orden and he joined the majority opinion in McCreary. Consequently, the Van Orden majority (tho not the majority opinion) recognized mandate for religions neutrality. Sadly, the Van Orden majority failed to recognize that the Eagles-donated Ten Commandments monument erected on the Texas State Capitol grounds is not neutral.

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[1]  This list of cases was originally prepared by Michael Newdow and appeared as Exhibit A in Document 4-2 filed on January 5, 2009 in Newdow v. Roberts (D. D.C., 1:08-cv-02248-RBW). Minor formatting changes have been made. All internal citations are omitted in this listing.