Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...
"Believing... that religion is a matter which lies solely between man and his God, that he
owes account to none other for his faith or his worship, that the legitimate powers of government
reach actions only, and not opinions, I contemplate with sovereign 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."
-- Thomas Jefferson to Danbury Baptists, 1802.
A union of government and religion tends to destroy government and degrade religion.
-- Supreme Court Justice Hugo Black,
Engel v. Vitale, 370 U. S. 421, 431 (1962).
Since its founding in 1913, the Anti-Defamation League has been guided by its mandate of combating bigotry, bias and discrimination, and securing the rights and liberties of all citizens of the United States. ADL believes deeply and profoundly in the importance of preserving and safeguarding freedom of religion in our increasingly pluralistic nation.
Consequently, we believe that government should neither promote nor be hostile to religion.
This belief has engendered what for many is a distasteful result: organized religious activity must be kept out of the public schools. This position is not one of hostility towards religion; rather, it reflects a profound respect for religious freedom and a recognition of the extraordinary diversity of religions represented by the students in our public schools.
Our nation's founders recognized the importance of keeping religion and the government separate. They did so out of respect for both religion and government, knowing that the combination of the two helped neither and often hurt both. To do this, they wrote three clauses in the United States Constitution to ensure that religion and government did not mix.
1. Religious Test Clause: "[N] o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." U.S. Constitution, Article VI, Clause 3.
2. Establishment Clause: "Congress shall make no law respecting an establishment of religion. . . ." U.S. Constitution, Amendment I.
3. Free Exercise Clause: "Congress shall make no law . . . prohibiting the free exercise thereof." U.S. Constitution, Amendment I.
Together these three clauses embody and ensure what Jefferson called the "separation of church and state." (For those dealing with the public schools, only the Establishment Clause and the Free Exercise Clause are of immediate concern.)
Not merely burdensome legal technicalities, these two clauses enshrine the belief that all Americans should be free to practice their religion without state interference.
Compliance with the separation of church and state must be vigorously enforced in the nation's public schools. Not endorsing or appearing to endorse religion is especially important in the public school setting due to a number of considerations unique to the public schools: the specific sensitivities of school-age children, the fact that public schools are public
institutions, and the profound influence of school officials and teachers over students.
This last point bears special examination. Most children view their teachers and other school
officials as important authority figures. Moreover, children are highly susceptible to coercion,
pressure to conform both from adults and from their peers. These factors create a significant
danger when religion is introduced into the public schools in circumstances evincing
the apparent endorsement of teachers.
Moreover, the student body in America's public schools is growing increasingly diverse.
Schools must give special consideration to the fact that many school children belong to
minority religions or are raised in non-religious environments. The nation's public schools
must be hospitable to students from a variety of backgrounds -- students of all faiths or no
faith. Public schools should inculcate students with understanding and respect for diversity,
as well as a spirit of tolerance, acceptance and inclusion.
In Santa Fe Independent School Dist. v. Doe, the Supreme Court nicely summed up the difficulty
with school sponsored religion:
School sponsorship of a religious message is impermissible because it sends the ancillary
message to members of the audience who are nonadherents that they are outsiders,
not full members of the political community, and an accompanying message
to adherents that they are insiders, favored members of the political community. 2
Some have said that this viewpoint "bristles with hostility to religion." 3 ADL does not agree.
To the contrary, this statement brilliantly expresses the difficulties that arise when government
makes religion its aim.
A. The Establishment Clause
As a legal matter, any school practice or policy must not violate the Establishment Clause.
For more than three decades, compliance with the Establishment Clause has been examined
under the test the U. S. Supreme Court enunciated in Lemon v. Kurtzman, 403 U. S. 602 (1971).
When a court looks at whether a program involving religion is permissible, it first asks: does
it meet the criteria set forth in Lemon? Indeed, the "Lemon test" has proven largely successful
in protecting the religious rights and liberties of all Americans, including religious
minorities. Thus, in order for a state practice or policy, including a public school practice or
policy, to pass constitutional muster under the Lemon test, a school official must answer "yes"
to the following three questions:
- Does the policy in question have a secular purpose?
- Will the policy in question have a primary effect which neither advances nor inhibits
- Does the policy in question avoid entangling government and religion?
If a school official cannot answer an unequivocal yes to all three of these questions, then the
policy must be abandoned. This is necessary as a matter of constitutional law and is good
policy. It respects the rights and sensitivities of all students, some of whom may have religious
practices that differ from the one being advanced by the policy in question.
In practice, this means that the public schools must never endorse -- or appear to endorse --
any religion or religious practice. Indeed, not only may they not appear to endorse religion,
but they may never appear to disapprove of religion either. Moreover, schools may not give
the impression that they endorse religious belief over non-belief or any particular belief over
The principle that public schools must never endorse or disapprove of religion has been
established in a long line of U. S. Supreme Court decisions. Students must never be given the
impression that their school officially prefers or sanctions a particular religion or religion
generally. Further, students must never feel coerced by pressure from their peers or from the
public to adhere to any religion.
The U. S. Supreme Court reemphasized the importance of church-state separation in the public
schools in Lee v. Weisman, 112 S. Ct. 2649 (1992) and more recently in Santa Fe Independent
School Dist. v. Doe, 530 U. S. 290 (2000). In both cases, the Court was particularly concerned
with the danger of student coercion in public schools resulting from peer and public pressure.
The decisions are a ringing reaffirmation of the importance of government not endorsing
one religion over another or religion over non-religion, particularly when public schools
are involved. Notably, the Supreme Court has held that the state (school) is constitutionally
obligated to see that state-supported activity is not used for religious indoctrination. 4
B. The Free Exercise Clause
The second question a school must ask about a proposed policy or practice is whether it violates
the "free exercise clause" of the First Amendment. "The free exercise of religion means, first and
foremost, the right to believe and profess whatever religious doctrine one desires. Thus, the
First Amendment obviously excludes all governmental regulation of religious beliefs as such.
The government may not compel affirmation of religious belief, punish the expression of religious
doctrines it believes to be false, impose special disabilities on the basis of religious views
or religious status, or lend its power to one or the other side in controversies over religious
authority or dogma." 5
While this protection seems very broad, the Court has held that the right of free exercise does
not relieve an individual of the obligation to comply with a "valid and neutral law of general
applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes
(or proscribes)." 6 That is, if a law or policy is passed that applies to everyone but hap-pens
to impinge on your ability to practice your religion, you may not be able to challenge the
law or policy on free exercise grounds. These challenges are difficult because the government
must only show a minimal justification for such laws. So, for example, criminal drug laws preventing
the use of peyote are applicable even to those whose worship requires the use of peyote
because the laws were not passed with religion in mind and are applicable to everyone. 7
The relationship between the Establishment Clause and the Free Exercise Clause can be a bit
hard to tease out. At the end of the day, however, so long as the school district is neither
endorsing nor disapproving of religion, it should not run afoul of the Constitution.
. . . so long as the school district is neither endorsing nor disapproving of religion, it
should not run afoul of the Constitution.