Anti-Christian Groups, Separatists Have Establishment Clause All Wrong, Say Law Experts

Anti-Christian groups are misinterpreting the Establishment Clause to advocate a strict separation between state and religious entities, constitutional law experts say.

Though the statement “separation of church and state” is commonly used to sum up the meaning of the Establishment Clause in the U.S. Constitution, Pacific Justice Institute President Brad Dacus said it is a misstatement from a 1947 Supreme Court ruling, Everson v. Board of Education.

“The strict separationist philosophy came as a result of a case out of the 1940s addressing a school district using [taxpayer dollars to reimburse parents for] public buses to take children to public schools as well as private religious schools. The court in that case ruled in favor of the constitutionality of that [action]. But in that case, they used the phrase separation of church and state,” he summed.

While the Supreme Court ruling used the phrase “separation of church and state” to uphold the constitutionality of the New Jersey Board of Education’s decision to subsidize students’ transportation regardless if they attended a religious private school, Dacus said separatists use the phrase to justify strict separation between government and religious entities to the point of “overt government hostility and discrimination.”

Dacus maintains that separatists are using the phrase “out of context.”

He argued that the Establishment Clause does not advocate a strict separation between state and religious entities. Rather, government is to assume a neutral stance that treats all religions fairly and enables religious liberty.

The Establishment Clause of the U.S. Constitution states that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise of thereof.”

The intent of the Constitution’s framers was to protect citizens’ rights and prevent the establishment of a state religion, constitutional lawyers assert.

The First Amendment Center’s Education for Freedom program noted that James Madison wrote in preliminary drafts of the Bill of Rights dating back to 1789, “The civil rights of none shall be abridged because of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner or in any pretext, infringed.”

 Dacus said of legal precedent interpreting the Establishment Clause, “Case law says that government must be neutral.”

In Everson v. Board of Education, Justice Hugo Black wrote that the Establishment Clause “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.”

In the 1962 case, Engel v. Vitale, the Supreme Court ruled against organized school prayer stating, “The First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, support or influence the kinds of prayer the American people can say, that the people's religious must not be subjected to the pressures of government for change each time a new political administration is elected to office.”

Yet separationist interpretations have led to discrimination against religious groups such as Bronx Household of Faith (BHF) church, Dacus contends, which actually violates the Establishment Clause.

The New York City Department of Education has refused to allow BHF to hold its Sunday worship services in a public school building while its facility undergoes construction. The board’s reasoning is that services blur the line of separation.

City officials heralded the U.S. Supreme Court decision last week to decline a hearing. The decision did not change the court’s position on religious groups’ First Amendment rights. It did, however, allow the 2nd Circuit Court of Appeals decision in June that the Department of Education can enforce a ban against religious groups in school facilities to stand.

City Senior Counsel Jane Gordon told The Associated Press, “The department was quite properly concerned about having any school in this diverse city identified with one particular religious belief or practice.”

Jordan Lorence, senior vice president of Alliance Defense Fund (ADF), writes regularly about churches’ First Amendment rights and represented BHF. He clarified, “Merely allowing a private group to meet in a government building, the Supreme Court has consistently said that is not government sponsorship of religion. It’s mere accommodation of private religious speech.”

The church has met for worship meetings on Sundays in the auditorium of P.S. 15 thanks to an injunction issued by a district court. About 60 other churches have also been allowed to worship in city public buildings as a result of the injunction, city officials reported.

Additionally, several other groups that are secular in nature also use the city public schools after hours as a meeting space.

After Feb. 12, 2012, worship meetings will not be allowed while other meetings can continue uninterrupted.

Dacus cited a similar case in California where a public school district charged religious groups a higher rental fee than secular groups to utilize its buildings. In both cases, Dacus argued that the school districts are actually violating the Establishment Clause by treating religious groups unfairly.

“You have government showing a preference against religion,” he said. “And that’s why school districts and government entities are wise to be truly neutral in their policies when it comes to allowed access to outside groups to use their facilities.”

ADF told The Christian Post that many large school districts allow religious groups to meet in its buildings outside of school hours, and the policy is not considered state-sponsored religion.

Lorence said, “Under current Supreme Court Decision, the sponsorship has to be clear and real.”

BHF’s meetings are not held during school hours, nor are they sanctioned by the city or state as successfully argued in Engel v. Vitale. Therefore it is not an example of state-sponsored speech, Lorence said, but of private individuals seeking to express their faith.

He summed, “Because this is private religious speech, there is not a separation of church and state issue because this is not state-sponsored religion. So the Establishment Clause simply does not come into the picture.”

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