Faith and Freedom:
The Case for Separation of Church and State

Religion in the Public Schools

The greatest current threat to separation of church and state is in the public schools, the very place that Americans of every background first learn the critical values of freedom and tolerance. And at a time when our population is growing increasingly diverse, those values are more important than ever. The public schools must make students from every background feel equally welcome if democracy is to endure.

The introduction of sectarian practices in this arena would undo that important function. They would intimidate students from religious minorities and compromise the religious expression of all groups.

Students from minority religions are particularly vulnerable. No one feels more embarrassed and isolated than a Jewish or Muslim child forced to participate in or remove himself from Christian-oriented activities. At the same time, students from majority groups may end up finding their own manner of worship dictated by schoolteachers and bureaucrats. Neither result is good for religious or personal freedom.

The dispute over school prayer is one of the longest-running controversies in this area. For almost 40 years, the courts have repeatedly and definitively found school-sponsored prayer unconstitutional but its advocates just as repeatedly try to reinstate it. While their most recent attempt, misleadingly named the Religious Freedom Amendment, was defeated in 1988, and did garner significant support in Congress.

Because public school students are, by nature, young and impressionable, the courts have long recognized how carefully they must be protected from peer and official pressure. The courts realize the First Amendment's Establishment Clause means students should never be given the impression that any one faith in particular, or religion in general, is officially sanctioned or preferred.

In addition to its discriminatory effect on religious minorities, organized school prayer tells students of all faiths that religion is a legitimate function of the state. This is not what the American ideal of religious freedom is about. The authors of the Constitution specifically rejected all language that would have authorized government aid for religious institutions.

This does not mean, of course, that students are obliged to check their religious beliefs at the schoolhouse door. The myth of the "Godless classroom" is just that -- a myth. Truly voluntary religious exercises in public schools have never been found to be illegal. While prayer and other religious activity led or organized by school officials and teachers is forbidden, the courts have left ample room for student religious expression.

As long as there is no disruption of normal school activity, individual students are free to engage in prayer whenever and wherever they like. Religious clubs that are initiated and led by students may have as much access to school facilities as do all other student clubs. Students even have the right, within limits, to distribute religious material on school grounds.

This is not enough for the zealots of the religious right. Blinded to the lessons of history, they continue to try to make public education a tool of sectarian indoctrination. Their efforts may be well intentioned, but the results have been profoundly troubling.

Among recent instances are the following:

  •  In Alabama, a family of Jewish children complains about their public school's promotion of Christian beliefs. They become the targets of harassment and one of them is forced to write an essay on "Why Jesus Loves Me." At a mandatory school assembly, a Christian minister condemns to hell all who do not accept Christ.
  •  In Utah, a Jewish student in the public schools is forced to sing religious songs and take part in Mormon worship in choir class. When she objects, her teacher publicly humiliates her and classmates subject her to anti-Semitic harassment.
  •  In California, a Jewish elementary school student in a Christmas play is given the role of a character who bows to the infant Jesus. Her parents object and the ensuing controversy splits the community.

It is not just Jewish and other minority students who suffer. When majority groups encounter resistance to their beliefs, the result is often suspicion and intolerance. And when state-imposed religious practice leads to dispute and division, everyone's educational experience is diminished.

Religion should be taught in the family and in our houses of worship. The public schools should be reserved for that which brings us together, not for matters of individual faith. Prayer is too important and too personal for government to be involved in it.


The American Experiment in Religious Freedom: Historical Background

The American experiment in religious freedom has stood the test of time. It has worked especially well for members of minority faiths, but followers of every religion have benefited. Religious faith flourishes here with an intensity unequalled in the industrialized world. And at the same time, an extraordinary diversity of faiths coexists here with a minimum of conflict.

Jews, in particular, have found in America a set of safeguards without parallel in the history of the Diaspora. As individuals and as a community, American Jews have thrived mightily. It would be one of history's great ironies if that success made them complacent.

Certain root principles protect the religious freedom of all Americans. Foremost among them is that of separation of church and state. Our nation's founding document, the Constitution, recognized no official church, and the Bill of Rights, guaranteeing the separation of church and state, was passed soon after the Constitution was ratified.

The American devotion to that principle stems from our country's traditional role as a haven from religious oppression.

The first settlers knew that religious liberty consists primarily of freedom from state interference. They knew from harsh experience what happens when the state is in-volved in the practice of religion. That can of worms had been opened all too often in the Old World, where thousands of years of persecution had resulted.

The Old World experience also showed that religion thrives best when it arises spontaneously, not at the direction of the state. The marriage of church and state often led to the corruption of the church and the disaffection of the faithful.

The new republic was designed to avoid those consequences.

The Founders kept it simple though. Their First Amendment formula for religious freedom was made up of just two parts: 1) No state establishment of religion; and 2) No state restriction on religious practice.

What were the results of that formula?

James Madison, the chief architect of the Constitution, observed of the young nation that "the [religious] devotion of the people has been manifestly increased by the total separation of the church from the state."

Count Alexis de Tocqueville, an early visitor to the United States, and one whose penetrating insights still ring true, wrote that organized religion held "quiet sway over the country because of the complete separation of church and state."

De Tocqueville went on to conclude that "any alliance with any political power whatsoever is bound to be burdensome for religion. It does not need their support in order to live, and in serving them it may die."

Do those early observations still apply?

Looking over the evidence, the Founders' formula has served this nation well. The United States today is home to more than 1,500 different religious faiths attending nearly 400,000 places of worship. And all without the strife that troubles so much of the rest of the world.

Now, however, plans are afoot to tinker with that formula.

No one is coming right out and saying it, but the effect of a number of current legislative proposals would be to undermine the principles behind the First Amendment.

These proposals come gift wrapped in the most benign and attractive ways. Their stated purposes are such that few could argue with them. But on close examination, they are flawed in ways that would undermine the rights of all of us -- believers and non-believers alike. 


School Vouchers

At a time when so many public school systems are troubled, school voucher programs may seem like a magic bullet. Touted as a way to provide a broader range of educational choice, these programs consist of government financial assistance (usually $2,500-$5,000 annually) to parents who send their children to private and parochial schools.

In the case of inner-city children, especially, it is claimed that vouchers level the playing field and offer an equal chance of attending private schools. It is further argued that vouchers, by way of the competition they foster, force public schools to "clean up their act."

It is not so. Voucher programs drain money from the public schools, further weakening them. Voucher programs often provide too little aid to help most parents afford private schools. And even if they did provide the benefits claimed for them, vouchers violate the Constitution, threaten the barrier between church and state and trample on the concept of freedom of religion.

The Constitution and the courts have left plenty of room for government programs that result in indirect benefits to religious organizations. Vouchers, however, are a whole other level of involvement -- direct state support of religious schools.

Religiously based education has its strengths. And those who choose religious schools for their children may be tempted by the lure of state subsidies. But where state money goes, state scrutiny is sure to follow. The independence of religious schools can only be compromised by reliance on government dollars.

However well-intended they may be, the bottom line remains: vouchers appropriate tax dollars to subsidize religious institutions. The Supreme Court has not yet heard a case on vouchers, but past rulings have struck down any government aid that effectively furthers the religious function of parochial schools.

Vouchers also have subtle discriminatory effects. Because the amount of each individual grant is so small, and because parochial schools are generally a good deal cheaper than other private schools, a disproportionate share of vouchers are directed towards religious schools. In some areas, up to 80 percent of voucher money would be used for schools whose central mission is religious indoctrination. It follows, then, that in some communities, children from Jewish and other minority religious backgrounds will have fewer options than others. They may find themselves with no choice but to attend either a deteriorating public school or a private school whose religious orientation differs from their own.

The ill effects of voucher systems reach to the very roots of the democratic spirit. Because vouchers divert resources from the public school system, they starve the seedbed of tolerance. Private education may have its virtues, but inclusiveness is not generally one of them. Private schools, whether religious or secular, often discriminate on any number of grounds. Public schools, on the other hand, are open to children of every racial, religious and economic background. To turn away from public education in its time of trouble is to reject an ideal of democracy and risk fragmenting society.

Even if we set aside such crucial concerns, the fact of the matter is that the effectiveness of voucher programs has been mixed, at best. One instance at least, the Milwaukee voucher program, has resulted in a huge budget shortfall, leaving the public schools scrambling for funds. On these grounds alone, voucher programs have the potential to do irreparable damage to our schools.


"Charitable Choice."

The threat to the separation of church and state extends to other areas of public policy as well. Under the guise of welfare reform, a concept known as "Charitable Choice" mingles church and state in the administration of social welfare.

Charitable choice allows churches, mosques and synagogues to bid for government social service contracts. It also could involve them in such things as drug rehabilitation, family counseling, early childhood education and food programs. While it is difficult to criticize the stated goal of the program, its rationale is questionable and its methods are dangerous.

Religious organizations of every sort are already actively engaged in government-funded social action. Groups like Catholic Charities, Lutheran Social Services and B'nai B'rith have a long history of such work. But these groups are set up apart from their sponsoring religious bodies.

Charitable choice eliminates these critical buffers. All that remains of the shield between church and state is an ill-defined promise that participating churches not use funds for "sectarian worship, instruction, or proselytization."

There's the rub. If religious groups take government money on this basis, who is to monitor them, and how? While the law makes no significant provisions for oversight, the taxpaying public is unlikely to accept distribution of state funds without accountability. Will state investigative officials make unannounced or undercover visits to America's houses of worship to assure compliance? Would any of us be comfortable with that prospect?

And for those careful enough to comply with the law: What remains of a place of worship that reins in the full expression of its religious character in exchange for government money? That would be just one of several unintended consequences of charitable choice.

The other extreme would be just as dangerous. Government agencies may forego their oversight or administer it lightly. Worship and proselytization are the very core functions of many religious bodies; social work is secondary. There will inevitably be those that overstep the law's bounds and use government funding to preach their faith to a captive, needy audience -- a clear violation of the constitutional boundary between church and state.

Charitable choice also threatens those safeguards in other, less obvious ways. The law bars the use of funds for proselytization, but does not bar proselytization per se. This opens the door to the finest of hairsplitting. It can only invite religious coercion on the one hand and endless legal wrangling on the other. Neither result is good for religion or welfare.

The subtlest coercive effect of charitable choice is by way of atmosphere and location. Government money can now go to programs administered in clearly sectarian settings. Welfare programs can be conducted with a crucifix overhead or the King James Bible on prominent display. Any kind of religious symbolism can surround the activities as long as no overt reference is made. But the implicit effect is inescapable.

There are numerous other problems with charitable choice. The law states that those who receive benefits have the right to choose programs that are not church-administered, but it contains no provision to notify them of this right. In any case, less populous, more out-of-the-way areas are unlikely to offer the poor any feasible alternative choices.

A flood of Federal money invites an unhealthy competition among participating religious groups. States with one dominant faith may be tempted to turn over all funding to that one group, leaving the rest smoldering with resentment. The pursuit of government subsidies will tempt religious bodies of every sort to enter social service fields for which they are ill-prepared, distracting from their legitimate, spiritual functions. And no one can say what the prospect of government funding will do to private, voluntary contributions.

The charitable choice program's clearest danger to civil liberties is that it provides government funds to sectarian bodies that are exempted from employment discrimination laws. Just as churches, mosques and synagogues can discriminate in hiring with their private funds, they can now also do so with public funds. With charitable choice, taxpayers dollars will underwrite blatantly discriminatory employment practices.

Charitable choice is a rusty knife that cuts both ways: If it is properly administered, it compromises the integrity of the religious groups who participate in it. If it is poorly administered, it amounts to a direct state subsidy of sectarian practice and religious discrimination. Because more carefully designed programs for religious participation in public welfare already exist, charitable choice,is both unnecessary and dangerous.


Frequently Asked Questions about Church-State Issues

Where does "separation of church and state" appear in the Constitution?

The concept is found in the First Amendment, which states that "Congress shall make no law respecting an establishment of religion. . . ." The Amendment does not contain the literal phrase, "separation of church and state," but that is its meaning. Both chief architects of the Constitution -- James Madison and Thomas Jefferson -- agreed on that and used the phrase freely.

In any case, "separation of church and state" is only a useful distillation of the Constitution's intent. The words "fair trial" are absent from the Constitution as well, but no one denies that it is a fundamental American principle. So, too, with "separation of church and state."

Didn't Jefferson use the phrase in a trivial context?

Jefferson's best-known use of "separation of church and state" was in a letter that summarized his thinking on the First Amendment. He was careful to have his Attorney General review the letter since he meant it to sow "useful truths and principles among the people, which might germinate and become rooted."

Wasn't the United States founded as a Christian nation?

Some of the first European settlers came here to practice their interpretations of the Christian religion, and most of the early colonies had official state religions. That practice was not adopted at the Constitutional Convention, however, and every attempt to include official recognition of Christianity in the United States Constitution was defeated.

The secular character of the new nation was quickly affirmed in the Treaty of Tripoli (1797). This document, negotiated under George Washington and signed under John Adams, flatly states that "The Government of the United States is not, in any sense, founded on the Christian religion."

Hasn't the Supreme Court ruled that the United States is a Christian nation?

No. One 19th-century Supreme Court decision included the statement "this is a Christian nation," but the phrase was used in dicta, a legal term meaning mere personal opinion without the force of law. The decision has only been referred to once in over 100 years of subsequent opinions.

Isn't the First Amendment intended only to forbid a national church?

The Framers of the Constitution considered and rejected First Amendment language solely addressed to the question of a national religion. In addition, both the House of Representatives and the Senate rejected language allowing "multiple establishments" and "non-preferentialism" (state funding of many religions equally). The Supreme Court has ruled that the Constitution is designed to prevent state religion in any form.

Isn't the First Amendment intended only to keep government out of religion, not religion out of government?

The Founders argued that the First Amendment would protect both religion and government. Madison specifically warned against the influence of powerful churches on the state. Jefferson believed it unworthy of religion to coerce belief through state power.

Has the ban on school prayer led to social decay?

America is experiencing a period of unprecedented social change, and we are certainly more aware of certain problems than ever before. But if some indicators of social health have declined, others have risen. It is a logical fallacy to claim that, simply because they follow it in time, either trend results from the school prayer decisions.

Further, America is just as religious a country now as it was when school prayer was a regular part of the public school curriculum. There is no evidence to suggest that the ban on school-sponsored prayer has led to a decline in religious values.

Didn't all public schools sponsor prayer and Bible reading prior to the early 1960s?

Many states had found such practices unconstitutional well before the Supreme Court did. It was clear by the early 1960s that a voluntary phase-out of such practices was well under way.

Isn't secular humanism the established religion of the public schools?

The courts have repeatedly ruled that the prohibition on state-established religion includes "a religion of secularism." The idea that official neutrality towards religion constitutes a belief system of its own is a propaganda device of those opposed to separation of church and state.

2001 Anti-Defamation League