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Government-Funded Religion Legal Issues
Separation of Church and State
The First Amendment opens with the statement, "Congress shall make no law respecting an establishment of religion." This protects religious organizations from state interference, the state from religious interference, and citizens from both when it comes to their personal religious views and practice or lack thereof. There have been many cases before state and federal courts that have addressed both sides of this issue, dealing with everything from graduation prayers at school-sponsored events to preaching on street corner. The constitutional questions surrounding funding for religiously affiliated private schools under proposed voucher plans offer another example of how the separation of church and state is involved with public policy.
The "Faith-based Initiatives" that are being implemented by President George W. Bush present many constitutional and practical problems. The ACLU and its coalition partners, including the American Baptist Church, the National Council of Jewish Women and the National Association of Social Workers, believe that President Bush's proposal would violate freedom of religion, endanger people who are in serious need of help and irresponsibly give taxpayer dollars to religious organizations by removing regulations and licensing guidelines required of other social services programs.
Government Entanglement in Religion
Bush's plan departs from current law because it gives taxpayer dollars directly to religious groups, thus shifting government-funded social service programs to "pervasively sectarian" religious institutions, such as churches, synagogues and mosques. Under current law, "religiously-affiliated" organizations are, in some cases, permitted to provide social services with taxpayer funds under contract with government funds. The Supreme Court, however, has not permitted the funding of institutions that are "pervasively sectarian" because it would violate the Establishment Clause. The Establishment Clause is a portion of the First Amendment to the U.S. Constitution that prohibits government from "establishing" a religion. It states that: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. "
The Supreme Court, in Bowen v. Kendrick, explained that "[o]nly in the context of aid to pervasively sectarian' institutions have we invalidated an aid program on the grounds that there was a substantial' risk that aid to these religious institutions would knowingly or unknowingly, result in indoctrination," or the promotion of sectarian beliefs.
The 1988 case was filed by a group of taxpayers that challenged the Adolescent Family Life Act, which allowed for the use of federal funds to do research into the subject of premarital adolescent sexuality. The religious organizations received federal funding only if they offered abstinence-based counseling services. The taxpayers claimed it violated the Establishment Clause.
Although the Court allowed federal funds to be given to religious organizations offering counseling, it ruled that the money must not be spent to "further religious purposes" and that the religious groups must list how the money will be spent.
In various other cases, the Court listed these factors to determine if an institution is "pervasively sectarian": 1) location near a house of worship; 2) an abundance of religious symbols on the premises; 3) religious discrimination in the institution's hiring practices; 4) the presence of religious activities; and 5) the purposeful articulation of a religious mission.
With regard to the presence of religious activities, the Supreme Court ruled in Wolman v. Walter, that although the state could provide some benefits to private school children, the state could not supply them with educational materials or subsidize class field trips. The Ohio case challenged the constitutionality of a series of benefits ? including textbooks, standardized tests, therapeutic and diagnostic services ? being offered from the public school system to remedial private school students needing special attention. Those benefits included religious instructional materials and field trip transportation. The court ruled that the supplying of educational materials is unconstitutional because it has the "primary effect of providing a direct and substantial advancement of the sectarian enterprise." It also said that the field trips were also illegal because a religious school teacher could give religious meaning or significance to a field trip taken to a secular (non-religious) place.
Another very significant case related to this issue was the 1971 Supreme Court decision in Lemon vs. Kurtzman, which involved state support for religious schools in Pennsylvania and Rhode Island. The court voted unanimously that the support was unconstitutional and provided a three-part approach to evaluating the neutrality of government involvement with such organizations in future cases. The Lemon vs. Kurtzman opinion reads: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion." The Bush faith-based initiative is at risk of being in violation of the three-part Lemon v. Kurtzman test.
Civil Rights
Federal civil rights laws protect Americans against discrimination in the workplace. However, while these laws apply in the workplace, they do not apply within religious organizations. Religious groups are allowed to discriminate on the basis of their religious beliefs about race, sexual orientation, and gender. Under the Bush initiative, then, a Catholic church receiving public funds for literacy programs could fire a teacher for getting pregnant outside of marriage. Or an Orthodox Jewish synagogue operating a food bank could refuse to hire non-Jews or women. Both of these instances would be cases of tax-payer money supporting discriminatory activities that are not in accordance with our nation's commitment to civil rights.
Similarly, the Bush initiative does not restrict how religious organizations incorporate their teachings and practices in the delivery of social services. People coming to a religious organization for a government sponsored service may find themselves pressured, if not forced, to participate in religious practices (required prayer, lifestyle teachings, etc). These groups would be allowed to decide who gets priority for services and what services are actually provided. The ACLU believes that the lack of protections could also lead to discrimination against those who most need help. A Baptist church that is running a housing program could, for example, give preference to low-income people in their own congregation. With private money, that is permissible ? but it is a constitutionally unacceptable use of public funds.
