Attorney Mathew D. Staver
President and General Counsel of Liberty Counsel
Before House Judiciary Subcommittee on the Constitution
Field Hearing in Tampa, Florida
June 23, 1995
Mr. Chairman, members of the committee, I want to thank
you for inviting me. My name is Mat hew Staver. I am
President and General Counsel of Liberty Counsel, a
religious civil liberties education and legal defense
organization. Liberty Counsel is based in Orlando, Florida,
but operates nationwide in the area of religious civil
liberties. Liberty Counsel provides education and legal
defense in free speech and religious civil liberty matters.
As an attorney who has concentrated in defending
religious civil liberties nationwide, having written on this
topic, and having monitored religious civil liberty trends
throughout the nation, I am concerned with the direction our
country is heading. The first chapter of my book, Faith and
Freedom, summarizes my perception that religion in the
public square is an endangered species. Religion in the
public square is indeed becoming an endangered species. At
Liberty Counsel, we receive numerous phone calls everyday
from around the nation. We investigate these phone calls,
and some of the incidents occurring throughout the country
are unbelievable, almost fairy tale in proportion. I am not
an alarmist, nor an extremist, but I am alarmed by attempts
to cleanse religion from the public square.
Something needs to be done to protect people of faith
from insidious discrimination. We are appalled by the racial
discrimination in South Africa and the human rights
violations in China. Indeed we should be. Yet, in this
country, public school students are reprimanded every day
for expressing their faith. Public school students are often
made to feel that their faith is something to be ignored
like the plague, something that must be left home,
something that is inherently evil. The public needs to be
better informed regarding religious liberty. The courts need
to be a more hospitable place to people of religious belief,
and if the courts will not protect religious liberty
guaranteed by the First Amendment, then the Constitution
needs to be amended to settle this debate once and for all.
Whenever we consider amending the United States
Constitution, we must pause and consider whether it is
necessary. I, for one, take very seriously the concept of
amending our Constitution. However, I strongly believe a
religious equality amendment is necessary. Before going into
detail as to why such an amendment is necessary, let me
quickly point out that I am simply asking that religious
expression be granted an equal playing field to other forms
of secular expression. Currently, the playing field is not
level, and religious expression and practices are treated as
second class forms of speech and singled out for
In the book, The Powers in a Secular State, published
in 1951, Professor Edward S. Corwin accurately pointed out
that the original understanding of the First Amendment was
that Congress should not prescribe a national faith. Justice
Joseph Story, who served on the United States Supreme Court
from 1811 to 1845, and who was an adherent to the Unitarian
faith, stated: "Probably at the time of the of the adoption
of the Constitution and of the [First] Amendment to it . . .
the general, if not the universal, sentiment in America was
that Christianity ought to receive encouragement from the
state, so far as such encouragement was not incompatible
with the private rights of conscience, and the freedom of
religious worship."(1) I am not asking for a Christianized
America, but I do believe that people of faith should have
1. Joseph Story, Commentaries on the Constitution of
the United States (3d ed., Boston: Hilliard, Gray, 1858), 2
Secs. 1874, 1877.
an equal opportunity to express their convictions as someone
who expresses their non theistic views. I am not asking that
religious faith and practice be given an advantage, but I am
asking for accommodation.
To understand our present situation, we must consider
the past. Oliver Wendell Holmes' statement is apropos: "A
page of history is worth a volume of logic." (2) As the
first act of the Continental Congress in 1774, the Rev.
Mister Duche opened with prayer and read from Psalm 31. (3)
From its inception Congress and state legislatures have
begun their sessions with an invocation by a paid Chaplain.
(4) Courts have historically opened their daily proceedings
with the invocation "God save the United States and this
Honorable Court." (5) Even the United States Supreme Court
has Moses and the Ten Commandments inscribed above the bench
2. New York Trust Co. v. Eisner, 256 U.S. 345, 349
3. Mr. Duche's prayer was as follows:
Be Thou present O God of Wisdom and direct the council of this
honorable assembly; enable them to settle all things on the best
and surest foundations; that the scene of blood may be speedily
closed; that order, harmony, and peace may be effectually
restored, and truth and justice, religion and piety, prevail and
flourish among the people. Preserve the health of their bodies,
and the vigor of their minds, shower down on them, and the
millions they represent, such temporal blessings as Thou geese
expedient for them in this world, and crown them with everlasting
glory in the world to come. All this we ask in the name and
through the merits of Jesus Christ Thy Son and our Saviour. Amen.
4. Marsh v. Chambers, 463 U.S. 783, 787-89 (1983). See
Lynch v. Donnelly, 465 U.S. 668, 673-74 (1984).
5. Marsh, 463 U.S. at 786.
recognizing the Biblical foundations of our legal heritage.
George Washington began the tradition of taking the
Presidential oath of office upon the Bible. When he assumed
office in 1789, he stated, "it would be peculiarly improper
to omit in this first official act my fervent supplications
to that Almighty Being who rules over the Universe ...."
(7) An impressive list of presidents subsequent to
Washington have invoked the protection and help of Almighty
James Madison, the father of the Bill of Rights, was a
member of the Congressional committee that recommended the
Chaplaincy system. (9) Madison voted for the bill
authorizing payment of chaplains. (10) Rev. William Linn was
elected Chaplain of the House of Representatives and paid
$500 from the federal treasury.
On September 25, 1789, the day the final agreement was
made on the Bill of Rights, the House requested President
Washington to proclaim a day of Thanksgiving to acknowledge
"the many signal favors of Almighty God." (11) He proclaimed
November 26, 1789, a day of Thanksgiving to offer "our
prayers and supplications to the great Lord and ruler
6. See Lynch, 465 U.S. at 677.
7. Engel v. Vitale, 370 U.S. 421, 466 (1962) (Stewart,
8. Engel, 370 U.S. at 44649.
9. H.R. Rp. No. 124, 33rd Cong., 1st Sess. (1789),
Reprinted in 2 No. 2 Reports of Committees of the House of
Representatives 4 (1854).
10. Annals of Cong. 891 (J. Gales ed. 1834).
11. H.R. Jour., 1st Cong., 1st Sess., 123 (1826 ed.);
S. Jour., 1st Cong., 1st Sess., 88 (1820 ed.); Lynch, 465
U.S. at 675 n.2.
of nations, and beseech Him to pardon our national and other
transgressions. (12) Later President Madison issued four
Thanksgiving Day proclamations on July 9, 1812, July 23,
1813, November 16, 1814 and March 4, 1815. (13) Successive
presidents have continued this tradition.
"The line we must draw between the permissible and
impermissible is one which accords with history and
faithfully reflects the understanding of the Founding
Fathers." (14) "Government policies of accommodation,
acknowledgment, and support for religion are an accepted
part of our political and cultural heritage." (15)
In 1892 the United States Supreme Court considered the
case of The Church of the Holy Trinity v. United States.
(16) In that case, the Supreme Court unanimously held that a
congressional statute forbidding the immigration of persons
under contract to perform labor did not apply to an English
minister who entered this country under a contract to preach
at a New York church. After reviewing extensive legislative
history, the Court concluded:
But beyond all these matters no purpose of action
against religion can be imputed against any
legislation, state or national, because this is a
religious people. This is historically true. From the
discovery of this continent to the present hour, there
is a single voice making this affirmation.... If we
pass beyond these matters to a view of American life as
expressed by its laws, its business, its customs and
its society, we find everywhere a clear recognition of
the same truth.... These, and many other matters
13 R. Cord, Separation of Church & State 31 (1982).
14.School District of Abington Township of Pennsylvania
v. Schempp, 374 U.S. 203, 294 (1963) (Brennan, J.,
15. County of Allegheny v. American Civil Liberties
Union, 109 S. Ct. 3086, 3135 (1989) (Kennedy. J., concurring
in part and dissenting in part).
16. 143 U.S. 457 (1892).
which might be noticed add a volume of unofficial
declarations to the mass of organic utterances that
this is a Christian nation. (17)
Tossing aside the original understanding of the First
Amendment, and the volumes of history which document the
religious liberty concerns of our founders, in 1989 the
Supreme Court in the case of County of Allegheny v. American
Civil Liberties Union, (18) stated that the purpose of the
First Amendment was to mandate that the government remain
secular. Justice Joseph Story, as noted above, indicated
that the purpose of the First Amendment was to encourage
Christianity. In 1892 the Supreme Court recognized the
religious heritage of this country, but in 1989 the same
Supreme Court found that the purpose of the First Amendment
was to mandate that government remain secular. The Supreme
Court's understanding of the Constitution has moved from
encouragement, to neutrality, to mandating secularism.
In the 1960s the United States Supreme Court focused
its attention on public schools. Paul Blanshard, a secular
humanist, wrote in The Humanist magazine, that his "primary
hero" in moving this nation toward a secular society was the
United States Supreme Court. Reviewing the impact of the
Supreme Court during the first seventy-five years of the
twentieth century, Mr. Blanshard concluded that the Supreme
Court cases have mandated secularistic teaching and that the
most important factor moving America toward a secular
society is the educational factor. He noted, "Our schools
may not teach Johnny to read properly, but the fact that
Johnny is in school until he is sixteen tends to lead
towards the elimination of religious superstition. The
average American child now acquires a high school education,
17. ld. at 470-71.
18. 492 U.S. 573 (1989).
this militates against Adam and Eve and all other myths of
alleged history." (19) Since it struck down prayer (20) and
Bible reading, (21) the Supreme Court removed the display of
the Ten Commandments from a classroom bulletin board in the
state of Kentucky, (22) and then ruled it was impermissible
for a rabbi to pray at a public school graduation. (23)
THE ESTABLISHMENT CLAUSE AND THE LEMON TEST
On its path to mandating a secular society, the Supreme
Court developed the so called "Lemon test" as annunciated in
its decision known as Lemon v. Kurtzman. (24) Under this
three-part test, any government interaction with religion is
constitutional only if it: (1) has a secular purpose; (2)
does not promote or inhibit religion, or more fully defined,
does not endorse religion; and (3) does not foster excessive
governmental entanglement with religion. Despite repeated
criticism of this unworkable test, it is still applied to
all church-state matters. Justices Scalia and Thomas soundly
criticized the Lemon test in their stinging critique of the
Court as follows:
Like some ghoul in a late-night horror movie that
repeatedly sits up in its grave and shuffles abroad,
after being repeatedly killed and buried, Lemon stalks
our Establishment Clause jurisprudence once again by
frightening little children and school attorneys . . .
Its most recent burial, only last Term [in Lee v.
19. Paul Blanshard, "Three Cheers for our Secular
State," The Humanist, March/April 1976, p. 17.
20. Engel v. Vitale, 370 U.S. 421 (1962).
21. School District of Abington Township v. Schempp,
372 U.S. 203 (1963).
22. Stone v. Graham, 449 U.S. 39 (1980).
23. Lee v. Weisman, 112 S. Ct. 2649 (1992).
24. 403 U.S- 602 (1971).
to be sure, not fully six-feet under .... Over the
years, however, no fewer than five of the currently
sitting Justices have, in their own opinion, personally
driven pencils through the creature's heart
The secret of the Lemon test's survival, I think, is
that is so easy to kill. It is there to scare us (and
our audience) when we wish to do so, but we can demand
it to return to the tomb at will.... When we wish to
strike down a practice it forbids, we evoke it . . . .
Sometimes we take a middle ground of course, calling
its three prongs "no more than helpful sign posts."
Such a docile and useful monster is worth keeping
around, at least in a somnolent state: one never
knows when one might need him. (25)
Using the convoluted Lemon test, the Supreme Court has
mandated that in order to pass Constitutional muster,
religion must be diluted with secular influences. Thus, a
nativity scene standing by itself is unconstitutional, but
it magically becomes constitutional when secular symbols of
the holiday are placed within its context. Christmas carols
at public schools wherein children sing "Silent Night, Holy
Night" are unconstitutional, but magically become
constitutional, if the same children, during the same
presentation, add to their repertoire the song, "Rudolph,
The Red-Nosed Reindeer." Using the same test, one court
ruled that student initiated graduation prayers were
unconstitutional, (26) while other courts have ruled that
the same prayers were indeed constitutional. (27) Yet, the
Supreme Court refuses to abandon its convoluted Lemon test.
The Lemon test has created havoc, misunderstanding, and
hostility toward religion.
25. Lamb's Chapel v. Center Moriches Union Free School
Dist., 113 S. Ct. 2141, 2150 (1993). See also Mathew Staver,
Faith and Freedom (Wheaton, IL: Crossway Books, 1995) p. 117
26. Harris v. Joint School Dist., 41 F.3d. 447 (9th
27. Jones v. Clear Creek lndependent School Dist., 977
F. 2d. 963 (5th Cir. 1992), cert. denied, 113 S. Ct. 2950
(1993). See also Adler v. Duval County School Bd., 851 F.
Supp. 446 (M.D. Fla 1994).
The crisis we face today in protecting religious
liberty is two-fold. First, over the past thirty years, the
Supreme Court has ignored the original understanding of the
First Amendment. Having cut the First Amendment free from
its foundational base, the Supreme Court has pliably bent
its protections to come in conformance with the majority of
the Justices at any one time. Since the First Amendment was
wrenched from its foundation, the Court has been forced to
develop rules for its application, and therefore developed
the Lemon test. The problem with the Lemon test is that it
injects a great deal of subjectivity into its application,
and from the very onset requires that the religious practice
be secularized in order to pass constitutional scrutiny.
Thus, religion is placed on the defensive, having to
secularize its meaning and expression. Though the Court has
been asked repeatedly to clarify this test, it has refused
to do so. Second, the lower federal courts have been forced
to apply the Lemon test. Mass confusion has resulted in its
application. For almost every federal district court opinion
stating one proposition, one can find another federal
district court holding exactly the opposite. Many of these
cases have not been appealed through the appellate level,
and most have not made their way to the United States
Supreme Court. Consequently, many of the federal district
court cases still remain and have never been clarified. For
practical purposes, many religious liberties have been lost
for lack of funds to carry on the battle. Because the
Supreme Court has developed such an unworkable test, it has
opened the floodgates to religious liberty litigation.
Courts have gone in all directions applying the Lemon test,
and religious adherents have often been frustrated when they
first enter the federal district court and are unable to
take the case any higher to have it clarified or possibly
overturned. To illustrate this point, I have listed below a
number of conflicting decisions considering the same issue.
In most cases I have cited the
federal district court cases simply to illustrate the
confusion among those courts. While the propositions stated
below may not be the final ruling of the court, as the case
may have been appealed to a higher judicial body, the cases
are cited to illustrate the religious liberty quagmire. (28)
In the area of release time, courts have allowed
students to go off school premises for religious instruction
(29) so long as the instruction did not take place near the
school building. (30) Some courts have ruled it
unconstitutional for students to hand carry attendance slips
from the parochial instruction back to the public school.
(31) Other courts have ruled that elective credit cannot be
given for the parochial course. (32) Some courts have ruled
that public school intercoms were permitted in seminary
classrooms and public schools could maintain mailboxes for
seminary instructors. (33) Schools have been forced to
defend the recognition of
28. The cases cited between footnotes 29 and 91 are
mostly citations to the federal district courts. These cases
are not shepardized and may have been overruled by either a
circuit court of appeals or the United States Supreme Court.
The cases are listed only as examples of the confusion
caused by the Lemon test and therefore may not represent the
final holding or established law.
29 Lanner v. Wimmer, 662 F.2d 1349 (lOth Cir. 1981);
Smith v. Smith, 523 F.2d 121 (4th Cir. 1975); State v.
Thompson, 225 N.W.2d 678 (1975).
30 Doe v. Shenandoah County School Board, 737 F. Supp.
913 (W.D. Va. 1990).
31. Lanner, 662 F.2d 1349; Thompson, 225 N.W.2d 678.
32. Lanner, 662 F.2d 1349; See Minnesota Federation of
Teachers v. Nelson, 740 F. Supp. 694 (D. Minn. 1990).
religious observances (34) and prohibition of school dances.
A parochial school child can participate in a public
school band course, (36) but cannot participate in an
all-county band. (37) If a parochial school child needs
remedial services, the district may be allowed to fund
services at the student's school, (38) but such provision
may be void on its face, (39) or funds may be allowed only
if services are performed at "neutral sites." (40)
Public funds may be used to lease classroom space from
a church related school, but only if public school children
are shielded from religious influence. (41) Public schools
may (42) or may not (43) lease classroom space in parochial
schools. Private school students or
34. See Florey v. Sioux Falls School District 49-5, 619
F.2d 1311 (8th Cir. 1980). See also Student Members of
Playcrafters v. Board of Education, 424 A.2d 1192 (N.J.
1981) (School board forced to defend policy of prohibiting
extracurricular activities on Friday, Saturday, and Sunday).
35. See Clayton v. Place, 884 F.2d 376 (8th Cir. 1989).
36 Snyder v. Charlotte Public School District, 421
Mich. 517, 365 N.W.2d 151 (1985).
37 Thomas v. Allegheny County Board of Education, 51
Md. App. 312, 443 A.2d 622 (1982).
38. See Walker v. San Francisco Unified School
District, 741 F. Supp. 1386 (N.D. Cal. 1990); Thomas v.
Schmidt, 397 F. Supp. 203 (D.R.I. 1975).
39. Wamble v. Bell, 598 F. Supp. 1356 (W.D. Mo. 1984);
Viss v. Pittenger, 345 F. Supp. 1349 (E.D. Pa. 1972).
40. Felt on v. Secretary, 739 F.2d 48 (2d Cir. 1984);
Pulido v. Cavasos, 728 F. Supp. 574 (W.D. Mo. 1989); Filler
v. Port Washington University Free School District, 436 F.
Supp. 1231 (E.D.N.Y. 1977); Wolman v. Essex, 417 F. Supp.
1113 (S.D. Ohio 1976).
41. Thomas v. Schmidt, 397 F. Supp. 203 (D.R.I. 1975).
42 Spacco v. Bridgewater School Department, 722 F.
Supp. 834 (D. Mass. 1989); Americans United for Separation
of Church & State v. Paire, 359 F. Supp. 505 (D.N.H. 1973);
religious organizations may (44) or may not (45) be
permitted to utilize public school facilities. Financial
assistance programs for needy students attending private
schools have failed the Lemon test.(46) Some courts have
disqualified private college students from receiving
government tuition grants, (47) while other courts have
allowed such grants.48 Some plans have been upheld only
United for Separation of Church & State v. Pa ire, 348 F.
Supp. 506 (D.N.H. 1972); Citizens to Advance Public
Education v. Porter, 237 N.W.2d 232 (Mich. 1976) (shared
time secular education program).
43. See Americans United for Separation of Church &
State v. School District of Grand Rapids, 546 F. Supp. 1071
(W.D. Mich 1982); Americans United for Separation of Church
& State v. Porter, 485 F. Supp. 432 (W.D. Mich. 1980);
Americans United for Separation of Church & State v. Board
of Education, 369 F. Supp. 1059 (E.D. Ky. 1974).
44. Gregoire v. Centennial School District, 907 F.2d
1366 (3d Cir. 1990); Parents Association of P.S. 16 v.
Quinones, 803 F.2d 1235 (2d Cir. 1986); Country Hills
Christian Church v. Unified School District, 560 F. Supp.
1207 (D. Karl. 1983); Resnick v. East Brunswick Township
Board of Education, 389 A.2d 944 (N.J. 1978); cf. Chess v.
Widmar, 635 F.2d 1310 (8th Cir. 1980) (University must allow
recognized student organizations to use school facilities
for religious purposes).
45 Lubbock Civil Liberties Union v. Lubbock Independent
School District, 669 F.2d 1038 (Sth Cir. 1982); Lamb's
Chapel vs. Center Moriches School District, 736 F. Supp.
1247 (E.D.N.Y. 1990); Resnick v. East Brunswick Township
Board of Education, 135 N.J. Super. 257, 343 A.2d 127
(1975); cf. Wallace v. Was hoe County School Board, 701 F.
Supp. 187 (D. Nev. 1988); Ford v. Manuel, 629 F. Supp. 771
(N.D. Ohio 1985).
46. Wolman v. Essex, 342 F. Supp. 399 (S.D. Ohio 1972);
People v. Howlett, 305 N.E.2d 129 (Ill. 1973); Weiss v.
Bruno, 82 Wash. 2d 199, 509 P.2d 973 (1973), contra Barr era
v. Wheeler, 475 F.2d 1338 (8th Cir. 1973).
47. See d'Errico v. Lesmeister, 570 F. Supp. 158
(D.N.D. 1983); Smith v. Board of Governors, 429 F. Supp. 871
(D.N.C. 1977); Americans United for Separation of Church &
State v. Dunn, 384 F. Supp. 714 (M.D. Tenn. 1974); Americans
United for Separation of Church & State v. Bubb, 379 F.
Supp. 872 (D. Karl. 1974); Opinion of the Justices, 280
So.2d 547 (Ala. 1973); State v. Swanson, 102 Neb. 125, 219
N.W.2d 727 (1974). But cf. Durham v. McLeod, 192 S.E.2d 202
(S.C. 1972) (loans constitutional).
48. See Americans United for Separation of Church &
State v. Blanton, 433 F. Supp. 97 (M.D. Tenn. 1977); Lend
all v. Cook, 432 F. Supp. 971 (D. Ark. 1977); Americans
United for Separation of Church & State v. Rogers, 538
S.W.2d 711 (Mo. 1976); Cecrle v. Illinois
when the use of the funds is restricted. (49) Students may
receive grants to study philosophy or religion in public
schools, but not theology in pervasively sectarian schools
failing a 36-prong test. (50) However, Veteran's
Administration, and some handicap tuition assistance
programs, have generally been held valid for recipients
attending sectarian schools. (51)
Some courts have ruled that the state may provide bus
transportation to private school children, (52) but in Rhode
Island, the enabling statute was stricken three times. (53)
Public funds cannot be used to provide textbooks to private
school students in some states, (54) but in
Educational Facilities Authority, 288 N.E.2d 402 (Ill. 1972).
49. See Walker v. San Francisco Unified School
District, 741 F. Supp. 1386 (N.D. Cal. 1990); Lend all, 432
F. Supp 971; Smith v. Board of Governors, 429 F. Supp. 871
(D.N.C. 1977); Americans United for Separation of Church &
State Fund, Inc. v. State, 648 P.2d 1072 (Colo. 1982).
50 See Minnesota Federation of Teachers v. Nelson, 740
F. Supp 694 (D. Minn. 1990); But cf. In Re Dickerson, 474
A.2d 30 (N.J. 1983) (testamentary scholarships for ministry
students at public institute constitutional).
51. Witters v. Washington Department of Service of the
Blind, 474 U.S. 481 (1986); Bob Jones University v. Johnson,
396 F. Supp. 597 (D.S.C. 1974).
52. Rhode Island Federation of Teachers v. Norberg, 630
F.2d 855 (tat Cir. 1980) (provision valid but not
severable); Cromwell Property Owners Association v.
Toffolon, 495 F. Supp. 915 (D. Conn. 1979); Board of
Education v. Bakalis, 54 Il1.2d 448, 299 N.E.2d 737 (1973);
State v. School District, 320 N.W.2d 472 (Neb. 1982);
Springfield School District v. Department of Education, 397
A.2d 1154 (Pa. 1979); cf. Americans United for Separation of
Church & State v. Benton, 413 F. Supp 955 (S.D. Iowa 1975)
(no cross-district transport).
53. Members of Jamestown School Committee v. Schmidt,
699 F.2d 1 (1st Cir. 1983); Members of Jamestown School
Committee v. Schmidt, 525 F. Supp. 1045 (D.R.I. 1981);
Members of Jamestown School Committee v. Schmidt, 427 F.
Supp. 1338 (D.R.I. 1977).
54. California Teachers Association v. Riles, 632 P.2d
953 (Cal. 1981); Mallory v. Barr era, 544 S.W.2d 556 (Mo.
1976); Paster v. Tussey, 512 S.W.2d 97 (Mo. 1974); contra
Elbe v. Yank ton Independent School District No. 1, 714 F.2d
848 (8th Cir. 1983); Wolman v. Essex, 417 F. Supp. 1113
(S.D. Ohio 1976); Cunningham v. Lutjeharms, 231 Neb. 756,
437 N.W.2d 806 (Neb. 1989).
others, it is acceptable for the state to reimburse
parochial schools for textbook expenditures. (55) Decisions
have limited the provision of educational materials to
sectarian schools. (56) In some cases states may not
reimburse a sectarian school for costs incurred performing
state-mandated tasks, such as testing and record-keeping,
(57) but in other cases it is permissible. (58)
State regulation of private schools regarding
compulsory attendance, (59) teacher certification, (60) and
curriculum (6l) have been upheld. State employees may not
teach or provide
55. Americans United for Separation of Church & State
v. Pa ire, 359 F. Supp. 505 (D.N.H. 1973); Pennsylvania
Department of Education v. The First School, 348 A.2d 458
56. Americans United for Separation of Church & State
v. Oakey, 339 F. Supp. 545 (D. Vt. 1972); but see Wolman v.
Essex, 417 F. Supp. 1113 (S.D. Ohio 1976).
57. Committee for Public Education & Religious Liberty
v. Levitt, 342 F. Supp. 439 (S.D.N.Y. 1972).
58. Committee for Public Education & Religious Liberty
v. Levitt, 461 F. Supp. 1123 (S.D.N.Y. 1978); Thomas v.
Schmidt, 397 F. Supp. 203 (D.R.I. 1975).
59. Fellowship Baptist Church v. Benton, 815 F.2d 485
(8th Cir. 1987); Attorney General v. Bailey, 436 N.E.2d 139
(Mass. 1982); State v. Shaver, 294 N.W.2d 883 (N.D. 1980).
60. Fellowship Baptist Church, 815 F.2d 486; but cf.
Bangor Baptist Church v. State, 549 F. Supp. 1208 (D. Me.
1982); Johnson v. Charles City Community Schools Board of
Education, 368 N.W.2d 74 (1985); Sheridan Road Baptist
Church v. Department of Education, 348 N.W.2d 263 (Mich.
1984); State v. Faith Baptist Church, 207 Neb. 802, 301
N.W.2d 571 (1981). cf. State v. Anderson, 427 N.W.2d 316
(N.D. 1988) (home schooling parents violated teacher
61. New Life Baptist Church Academy v. East Long
meadow, 885 F.2d 952 (tat Cir. 1989); Sheridan Road Baptist
Church v. Department of Education, 348 N.W. 2d 263 (Mich.
1984); State v. Faith Baptist Church, 301 N.W.2d 571 (1981);
cf. New Jersey State Board of Higher Education v. Board of
Directors, 448 A.2d 988 (N.J. 1982) (prohibiting conferring
of degree by unlicensed institution applied to a sectarian
college whose religious doctrine precluded state licensure).
remedial services in private schools, (62) but may visit
classrooms to observe both secular and religious teaching,
suggest teacher replacements, and review accreditation. (63)
However, student teachers may not receive credit for
teaching at parochial schools. (64)
State inquiry into a religious organization' s
operating costs violates the Establishment Clause, (65)
unless requested by the Internal Revenue Service. (66) The
state may enforce compliance with minimum wage laws, (67)
the Fair Labor Standards Act, (68) and force participation
in FICA and FUTA, (69) despite an organization's religious
beliefs to the contrary.
62. Pulido v. Cavazos, 728 F. Supp. 574 (W.D. Mo.
1989); Wamble, 598 F. Supp 1356; Americans United for
Separation of Church & State v. Porter, 485 F. Supp. 432
(W.D. Mich. 1980); Americans United for Separation of Church
& State v. Board of Education, 369 F. Supp 1059 (E.D. Ky.
1974); but see Walker v. San Francisco United School
District, 741 F. Supp. 1386 (N.D. Cal. 1990).
63. New Life Baptist Church Academy v. East Long
meadow, 885 F.2d 952 (tat Cir. 1989).
64. Stark v. St. Cloud State University, 802 F.2d 1046
(8th Cir. 1986).
65. Surinach v. Pesquera de Busquets, 604 F.2d 73 (tat
Cir. 1979); Fernandez v. Lima, 465 F. Supp. 493 (N.D. Tex.
1979). See also Heritage Village Church & Missionary
Fellowship v. State, 263 A.2d 726 (N.C. 1980) (act requiring
only certain religious groups to file information is
66. United States v. Freedom Church, 613 F.2d 1316 (tat
Cir. 1979); Lutheran Social Service v. United States, 583 F.
Supp. 1298 (D. Minn. 1984); cf. Hernandez v. Commissioner,
819 F.2d 1212 (tat Cir. 1987); St. Bartholomew's Church v.
City of New York, 728 F. Supp. 958 (S.D.N.Y. 1989) (state
inquiry into church records does not violate entanglement
67. Archbishop of Roman Catholic Apostolic Archdiocese
v. Guardiola, 628 F. Supp. 1173 (D.P.R. 1985); Donovan v.
Shenandoah Baptist Church, 573 F. Supp. 320 (W.D. Va. 1983).
68. Dole v. Shenandoah Baptist Church, 899 F.2d 1389
(4th Cir. 1990); E.E.O.C. v. Freemont Christian School, 781
F.2d 1362 (9th Cir. 1986); Ninth & O St. Baptist Church v.
E.E.O.C., 616 F. Supp. 1231 (W.D. Ky. 1985); Russell v.
Belmont College, 554 F. Supp. 667 (M.D. Tenn. 1982).
69. South Ridge Baptist Church v. Industrial
Commission, 911 F.2d 1203 (6th Cir. 1990) (church included
within workers' compensation system); Bethel Baptist Church
v. United States,
The National Labor Relations Board may not be applicable to
parochial schools, (70) but a state labor board may have
jurisdiction. (71) Sectarian schools are prohibited from
utilizing CETA workers. (72) Civil rights statutes have not
been enforced against religious organizations, (73) but
courts have split as to whether the "reasonable
accommodation" requirement may be enforced against secular
employees. (74) As a result, religious institutions have
been forced to
822 F.2d 1334 (3d Cir. 1987); Young Life v. Division of
Employment & Training, 650 P.2d 515 (Colo. 1982) (religious
organization subject to unemployment tax); Baltimore
Lutheran High School Association v. Employment Security
Administration, 490 A.2d 701 (Md. 1985) (school subject to
unemployment tax); Contra Grace Lutheran Church v. North
Dakota Employment Security Bureau, 294 N.W. 767 (N.D. 1980)
(church not subject to unemployment tax); The Christian Jew
Foundation v. State, 353 S.W.2d 607 (Tex. 1983)
(organization exempt from unemployment tax); Community
Lutheran School v. Iowa Department of Job Service, 326
N.W.2d 286 (Iowa 1982) (school exempt from unemployment
70. Universidad v. N.L.R.B., 793 F.2d 383 (tat Cir.
1985); see also N.L.R.B. v. Salvation Army, 763 F.2d 1 (tat
Cir. 1985); N.L.R.B. v. Bishop Ford Central Catholic High
School, 623 F.2d 818 (2d Cir. 1980); Catholic Bishop v.
N.L.R.B., 559 F.2d 1112 (2d Cir. 1977); McCormick v. Hirsh,
460 F. Supp. 1337 (M.D. Pa. 1978); contra N.L.R.B. v. St.
Louis Christian Home, 663 F.2d 60 (8th Cir. 1981); Grutka v.
Barb our, 549 F.2d 5 (7th Cir. 1977).
71. Goldsborough Christian Schools, Inc. v. United
States, 436 F. Supp 1314 (E.D.N.C. 1977); cf. Catholic High
School Association v. Culvert, 753 F.2d 1161 (2d Cir. 1985).
72. Decker v. O'Donnell, 663 F.2d 598 (7th Cir. 1980)
(CETA created entanglement); see also, Decker v. Department
of Labor, 473 F. Supp. 770 (E.D. Wis. 1979).
73. Dayton Christian Schools v. Ohio Civil Rights
Commission., 766 F.2d 932 (6th Cir. 1985); Cochran v. St.
Louis Preparatory Seminary, 717 F. Supp. 1413 (E.D. Mo.
1989); Maguire v. Marquette University, 627 F. Supp 1499
(E.D. Wis. 1986); E.E. O. C. v. Southwestern Baptist
Theological Seminary, 485 F. Supp. 255 (N.D. Tex. 1980);
E.E.O.C. v. Mississippi College, 451 F. Supp. 564 (S.D.
Miss. 1978); contra Dolter v. Wahlert High School, 483 F.
Supp. 266 (N.D. Iowa 1980); McLeod v. Providence Christian
School, 408 N.W.2d 146 (Mich. 1987); but see E.E.O.C. v.
Pacific Press Publishing Association, 676 F.2d 1272 (9th
74. Protos v. Volkswagon of America, Inc., 797 F.2d 129
(3d Cir. 1986); Nottleson v. Smith Steel Workers, 643 F.2d
445 (7th Cir. 1981); E.E. O. C. v. Jefferson Smurfit Corp.
,724 F. Supp. 881 (M.D. Fla. 1989); Gavin v. Peoples Natural
Gas Co., 464 F. Supp. 622 (W.D. Pa. 1979);
departmentalize between those employees who carry on the
ministry and mission of the institution from other employees
who perform routine tasks. Thus, while a religious
institution may discriminate on the basis of religion in
hiring and firing a school professor, it may not do the same
to a secretary.
Two entanglement triangles arise in the provision of
child care. First, the state may purchase child care
services from religiously affiliated organizations (75) and
may consider the religious preference of the parents for
placement, (76) but the agency cannot impose its religious
doctrine upon a child. (77) Second, religious child care
facilities exempted from licensure may or may not be deemed
to fail the Lemon test.78 Church-run day care centers are
Michigan Department of Civil Rights v. General Motors, 317
N.W. 16 (Mich. 1982); American Motors Corp. v. Department of
Industry, Labor, & Human Relations, 286 N.W.2d 847 (Wis.
75. Wilder v. Bernstein, 848 F.2d 1338 (2d Cir. 1988).
76. Id., cf. Dickens v. Ernesto, 281 N.E.2d 153 (N.Y.
1982) (religious affiliation requirements in adoption
proceeding constitutional); Bonjour v. Bonjour, 592 P.2d
1233 (Alaska 1979) (statute specifying religious needs of
child upheld); Zucco v. Garrett, 501 N.E.2d 875 (Ill. 1986)
(awarding custody based on religious practices is abuse of
77. Arneth v. Gross, 699 F. Supp. 450 (S.D.N.Y. 1988).
78. Forest Hills Early Learning Center v. Lukhard, 728
F.2d 230 (4th Cir. 1984); Forte v. Colder, 725 F. Supp. 488
(M.D. Fla. 1989); see The Corpus Christi Baptist Church,
Inc. v. Texas Department of Human Resources 481 F. Supp.
1101 (S.D. Tex. 1979); Forest Hills Early Learning Center,
Inc. v. Grace Baptist Church, 846 F.2d 260 (4th Cir. 1988);
North Valley Baptist Church v. McMahon, 696 F. Supp 578
(E.D. Cal. 1988); Cohen v. City of Des Plaines, 742 F. Supp.
458 (N.D. Ill. 1990); State v. Corpus Christi People's
Baptist Church, Inc., 683 S.W.2d 692 (Tex. 1984); State
Department of Social Services v. Emmanuel Baptist
Pre-School, 455 N.W.2d 1 (Mich. 1990); Pre-School Owner's
Association v. Department of Children & Family Services, 518
N.E.2d 1018 (Ill. 1988); Arkansas Day Care Association, v.
Clinton, 577 F. Supp 388 (E.D. Ark. 1983). cf. State v.
McDonald, 787 P.2d 466 (Okla. 1989) (religious affiliated
"boy's ranch" subject to state licensing requirements).
subject to zoning restrictions, (79) but a city may not
exempt them from requirements imposed upon commercial
Courts are divided over whether the state may (81) or
may not (82) erect a cross as a war memorial. Where a state
exercised eminent domain over a cemetery, a court prohibited
the state from erecting crosses and a statue of Jesus, but
allowed the state to provide and erect religious markers
chosen by the descendants. (83) Crosses placed on government
property have generally been prohibited, (84) but crosses
and religious symbols on official seals may or may not be
The Ten Commandments have been removed from schools,
(86) but permitted to remain on other public property. (87)
A legislature may designate a room for prayer and
79. First Assembly of God v. City of Alexandria, 739
F.2d 942 (4th Cir. 1984).
80. Cohen v. City of Des Plaines, 742 F. Supp. 458
(N.D. Ill. 1990); cf. Arkansas Day Care Association, 577 F.
Supp. 388 (statute disparately treated religious
81. Eugene Sand & Gravel, Inc. v. Eugene, 276 Or. 1007,
558 P.2d 338 (1976).
82. Jewish War Veterans v. United States, 695 F. Supp.
3 (D.D.C. 1988).
83. Birdine v. Moreland, 579 F. Supp. 412 (N.D. Ga.
84. Mendelsohn v. City of St. Cloud, 719 F. Supp. 1065
(M.D. Fla. 1989); Hewitt v. Joyner, 705 F. Supp. 1443 (C.D.
Cal. 1989); ACLU v. Rabun County Chamber of Commerce, Inc.,
510 F. Supp. 886 (N.D. Ga. 1981); Fox v. City of Los
Angeles, 587 P.2d 663 (Cal. 1978).
85. Salad in v. City of Milledgeville, 812 F.2d 687
(llth Cir. 1987); Friedman v. Board of City Commissioners,
781 F.2d 777 (lOth Cir. 1985); Fore master v. City of St.
George, 882 F.2d 1485 (lOth Cir. 1989); Harris v. City of
Zion, 927 F.2d 1401 (7th Cir. 1991); Johnson v. Board of
County Commissioners, 528 F. Supp. 919 (D.N.M. 1981); Murray
v. City of Austin, 744 F. Supp. 771 (W.D. Tex. 1990).
86. Ring v. Grand Forks Public School District, 483 F.
Supp. 272 (D.N.D. 1980).
87. Anderson v. Salt Lake City Corp., 475 F.2d 29 (lOth
meditation, but religious decorations or use of the room may
be prohibited. (88)
An order of then-Governor Ronald Reagan giving state
employees a three hour paid holiday on Good Friday violated
the Establishment Clause, (89) but a school district was
permitted to designate Good Friday a paid holiday in
conjunction with a Union Contract. (90)
As a result of our abandonment of the original
understanding of First Amendment and the development of the
Lemon test, religion has been put on the defensive by
forcing it to assume a cloak of secularism.
When there is some form of religious expression that we
wish to keep, as Justice Scalia said, we either bury the
Lemon test, or we interpret it to our own pleasing. For
example, Justice William Brennen stated that the phrase
"under God" in our Pledge of Allegiance is constitutional
because it no longer has a religious purpose or meaning.
(91) Under the Supreme Court's rationale, certain religious
phrases, such as "In God We Trust, " would be constitutional
because it is a secular form of religion. In other words, we
have used the phrase so many times that it has lost its
religious meaning. Under this bizarre analysis, at one time
the phrase would probably have been unconstitutional, but
because we have used it so much, it has become
constitutional under the Lemon test.
81. Van Zandt v. Thompson, 839 F.2d 1215 (7th Cir.
89. Mandel v. Hodges, 54 Cal. App. 3d 596 (1976).
90. California School Employees Association v. Sequoia
Union High School District, 67 Cal.App.3d 157 (1977); cf.
Cammack v. Waihee, 673 F. Supp. 1524 (D. Haw. 1987) (state
may declare Good Friday a legal holiday).
91. Schempp, 374 U.S. at 304.
THE DEMISE OF THE FREE EXERCISE CLAUSE
While our Establishment Clause jurisprudence has become
schizophrenic, the Free Exercise Clause of the First
Amendment has taken a back seat to other constitutional
protections. For example, in 1990 the Supreme Court in
Employment Division v. Smith, (92) ruled that we no longer
have the "luxury" in this country to tolerate religious
liberty. The Supreme Court ruled that any neutral and
generally applicable law which impacts religion will
nevertheless be upheld as constitutional. (93) That ruling
overturned decades of Supreme Court interpretations that
granted special protection to the free exercise of religion.
As a result of the Smith case, religious liberty has been
relegated to second class protection. Now the religious
liberty of private citizens is no greater than the religious
liberty granted to prisoners.94 According to Chief Judge
Posner of the Seventh Circuit Court of Appeals, "the
principle derived from the free-exercise clause of the First
Amendment [is] that government must accommodate its laws of
92. 494 U.S. 872 (1990).
93 Prior to the Supreme Court's decision in Employment
Division v. Smith, 494 U.S. 872 (1990), thirty years of
Supreme Court jurisprudence had established that a
government may not substantially burden the free exercise of
religion absent a demonstration that such burden was the
least restrictive means of furthering a compelling
government interest. See, e.g., Wisconsin v. Yoder, 406 U.S.
205 (1972) (state's interest in universal education was not
sufficiently compelling to outweigh religious tradition of
Amish forbidding formal education past the eighth grade);
Sherbert v. Verner, 374 U.S. 398 (1963) (compelling state
interest did not justify denial of unemployment benefits to
Seventh-day Adventist who established working on Saturday
would require her to break her Sabbath). Noting that Smith
"dramatically weakened the Constitutional protection for
freedom of religion," S.Rep. No. 111, 103rd Cong., 1st Sess.
3 (1993), Congress passed RFRA "to restore the compelling
state interest test as set forth in Sherbert v. Verner . . .
and Wisconsin v. Yoder . . . and to guarantee its
application in all cases where free exercise of religion is
substantially burdened." 42 U.S.C. 2000bb(b).
94. In a prisoner rights case, the Eighth Circuit Court
of Appeals stated that "Smith does not alter the rights of
prisoners; it simply brings the free exercise rights of
private citizens closer to those of prisoners." Salaam v.
Lockhart, 905 F.2d 1168, 1171 (8th Cir. 1990).
general applicability to the special needs of the religious
minorities. [T]hat principle is moribund after Employment
Division v. Smith. (95) In another case the Seventh Circuit
again recognized that "Smith cut back, possibly to minute
dimensions, the doctrine that requires government to
accommodate, at some cost, minority religious preferences."
(96) Indeed, the Smith decision represents "a considerable
shift in the Court's direction in free exercise
jurisprudence." (97) Prior to the Smith decision, there was
a presumption that religious organizations were not intended
to be regulated by Congress unless they were specifically
included in the statutory language, (98) but after Smith,
there is a presumption that religious groups are not to
receive any special treatment unless specifically stated by
the legislature. (99) Since Smith, Native American Indians
have been prohibited by some courts from using peyote during
their worship services. (100) Landmark laws which prohibit a
church from expanding its ministry have nevertheless been
upheld as constitutional because they are neutral and
generally applicable regulations. (101) As a result of the
Smith decision, neutral zoning laws of general
95. Miller v. Civil City of South Bend, 904 F.2d 1081,
1102-03 (7th Cir. 1990) (en bane) (citations omitted).
96. Hunafa v. Murphy, 907 F.2d 46, 48 (7th Cir. 1990).
97. United States v. Board of Education for the School
District of Philadelphia, 911 F.2d 882, 888 n.3 (3rd Cir.
98. N.L.R.B. v. Catholic Bishop of Chicago, 440 U.S.
99. Inter community Center for Justice and Peace v.
INS, 910 F.2d 42 (2d Cir. 1990).
100. Peyote Way Church of God v. Thornburgh, 922 F.2d
1210 (5th Cir. 1991).
101. St. Bartholomew's Church v. City of New York, 914
F.2d 348 (2d Cir. 1990). It is obvious that the Landmarks
Law has drastically restricted the Church's ability to raise
revenues to carry out its various charitable and ministerial
programs. In this particular case, the
applicability have restricted the ability of churches to
either locate their ministry, (102) or to carry on their
Biblical mandate and mission to comfort the homeless or feed
the hungry. (103)
To counteract the Supreme Court's abandonment of
religious liberty, Congress passed the Religious Freedom
Restoration Act in 1993. (104) Unfortunately, a federal
court in Texas has recently ruled the act unconstitutional,
ruling that Congress did not have the authority to overrule
the decision of the United States Supreme Court. (105)
If the Smith decision were in existence at the time of
Prohibition, the Roman Catholic Church would have been
prohibited from practicing communion. In other words, the
church would be prohibited from taking wine during the
communion service because the church would have faced a
neutral law of general applicability that forbade the sale
and consumption of alcoholic beverages. After Smith, Roman
Catholic teaching hospitals have been forced to choose
between performing abortions contrary to their sincerely
held religious beliefs, or forfeiting their teaching
hospital status. During the three year reign of terror from
1990 to 1993, religious freedom was significantly damaged.
The only way to maintain a religious
revenues are very large because the Community House is
on land that would be extremely valuable if put to
commercial uses. Nevertheless, we understand Supreme
Court decisions to understand that neutral regulations
that diminish the income of a religious organization do
not implicate the Free Exercise Clause.
Id. at 355.
102. Cornerstone Bible Church v. City of Hastings, 948
F.2d 464 (8th Cir. 1990).
103. First Assembly of God v. Collier County, 20 F.3d
419 (llth Cir. 1993), opinion modified on denial of reh'g,
27 F.3d 526 (llth Cir. 1994), cert. denied, 115 S. Ct. 730
104. 42 U.S.C. SS 2000bb.
105 Flores v. City of Boerne, 877 F. Supp. 355 (W.D.
Tex. 1995). But see Belgard v. State of Hawaii, 883 F. Supp.
510 (D. Haw. 1995) (upholding the constitutionality of
freedom claim was to link it up to some other form of
constitutional protection such as Free Speech or Equal
Protection. If that could be done, the religious adherent
would have the same protections afforded to the First
Amendment Free Speech or Equal Protection Clauses. Standing
alone, the Free Exercise Clause is no longer powerful enough
to protect the religious liberty of our citizens. Today,
religious freedom hangs in a very delicate balance. If the
Supreme Court agrees with the federal court in Texas that
ruled unconstitutional the Religious Freedom Restoration
Act, then God help this country. The Supreme Court has
already indicated that we no longer have the luxury of
tolerating the free exercise of religion.
The combination of the Supreme Court's convoluted Lemon
test mandating a secular society with the loss of our free
exercise protections, is the reason we need a religious
equality amendment. Below is a sampling of cases that we at
Liberty Counsel have encountered in the religious morass.
A fourth-grade student had his Bible confiscated when
he brought it to public school. The week prior to this
incident he was awarded Student of the Week, and the week of
this incident he was awarded the higher honor of Very
Special Student. Before the school bell rang, signaling the
beginning of another school day, Joshua was silently reading
his Bible when his teacher approached him, confiscated the
Bible, and stated in front of the entire class, "This is a
public school, not a Bible school." The teacher explained
this was due to the separation of church and state. On a
subsequent day the student brought his Bible back to school.
The Bible was closed sitting by his other books when the
teacher again approached him, pointed to the
Bible, and summoned the principal, after stating, "We need
to talk to the principal about that thing." The student was
taken to the principal's office where he was interrogated
for more than an hour. He was asked questions like "Why do
you read the Bible?" and "Where do you go to church?" He was
then forced to sit in the corner of a room, detained the
entire day for the sole "crime" of bringing his Bible to
school. When Joshua's father subsequently spoke to the
principal, she stated that as soon as students step on the
school bus, they are under the school's jurisdiction and
they cannot bring their Bible, nor can they share their
faith during non-class time because to do so might offend
another student. The principal acknowledged that students
can talk about politics or read secular books, but religion
was a different matter.
In another case a his panic student by the name of
Jesus was told that he could not bring his pictorial Bible
to free reading time. With only a few weeks left in the
school year, the teacher in charge of the free reading class
told the students to bring books from home that they wanted
to read during free reading time. Jesus brought his
pictorial Bible and was reading it to himself when the
teacher approached him, and stated he could not bring the
Bible to school because of the separation of church and
state. He was forced to put the Bible under his desk, and
since he did not have anything else to read, was forced to
lay his head down on top of his desk for the remainder of
the class. Maria, his mother, had migrated from Cuba to the
United States twenty years previously. She stated that she
came here for the purpose of freedom and was astounded at
what she encountered.
For brevity sake, I have mentioned only these two cases
involving students bringing Bibles to school. For the
record, we have encountered many of these instances
throughout the country.
Peggy has ten children in public schools in Wisconsin.
Families were asked to participate in celebration of the
twenty-fifth anniversary of the school by making posters on
the theme of "Honor the past, embrace the present, prepare
for the future. " The family's poster has four sections:
faith, family, country, and knowledge. (See Exhibit A) In
the faith section, there was a picture of a person wearing a
t-shirt with the word "Jesus. " The family included this
picture to highlight the importance of their faith and the
faith in the community. The poster was originally displayed,
but the principal removed it, while the others remained on
display. The poster was removed solely because one of the
images was religious. The school had the impression that it
must censor out this poster because the display was
Show and Tell
A sixth-grade class was assigned the task of doing a
book report and reading their reports in front of the entire
class. A sixth-grader by the name of Lisa wanted to do her
book report on the book of Genesis. None of the other
students were required to give disclaimers distancing the
class from the book being reviewed, but Lisa was told she
has to state a disclaimer to the effect that while she
realized everyone in the class was not Christian, these were
her own personal views. Lisa gave her book review, but did
not state such a disclaimer. Consequently, she was
reprimanded by the teacher. No other student was required to
public ally give a disclaimer prior to their book reports.
* * * *
An eleventh-grader was told that he could not
distribute religious literature on
school grounds, and was forced to turn his religious t-shirt
inside out. Other students were permitted to wear t-shirts
with various secular writing, but Ernesto was suspended for
On October 30, a fifth-grade student by the name of
Amber brought literature to class in a backpack. The
literature consisted of an invitation to an after school
program which was an alternative to a Halloween party
presented by a church, and a Jews for Jesus gospel tract.
She approached her teacher and asked if she could hand out
this literature to her fellow classmates during non
instructional time. The teacher summoned the principal, and
after the principal came to the classroom and noticed that
the material was religious, he took it back to his office.
At the end of the school day, Amber asked her teacher if she
could have her literature back because she was going to an
after school program and wanted to pass out the literature
to her friends. The teacher directed her to talk with the
principal. When she approached the principal, he told Amber,
"I will not have religious literature on my campus." The
principal had actually thrown the literature in the garbage
and would not return it to Amber. Amber was devastated by
this action and began crying. This case eventuated in a
lawsuit because students were permitted to distribute
secular literature but not religious literature. The school
lost this lawsuit when the federal court ruled the
principal's actions and the school board policy were both
unconstitutional, but recent reports indicate that despite
the federal court ruling, the school has again taken action
against students to prohibit them from bringing religious
literature on campus.
* * * *
An eighth-grade student by the name of Jennifer wanted
to distribute the religious
newspaper, Issues and Answers, to her fellow classmates
during non instructional time. When she approached the
assistant principal and asked for permission to do so, the
assistant principal inspected the newspaper and stated the
school prohibited students from bringing Bibles, religious
literature, or literature that quotes the Bible because of
the separation of church and state. Other students were
allowed to distribute secular literature.
Use of Public Facilities
Jim, who operates a ministry known as Victory Outreach
Ministry, asked for and received permission to conduct
seminars in a public housing facility. These seminars were
meant to provide needed training and assistance to those in
public housing. Other secular organizations were permitted
to conduct seminars within the facilities. During one of the
seminars, one of the directors of the facility walked by the
classroom and noticed that Jim had a Bible on the front desk
as he was teaching the class. This class was free and
voluntary to any public resident who wanted to attend. Jim
was interrupted during the presentation and asked to see the
director after the class finished. He was then told that he
would not be able to continue the presentation because the
facility would not tolerate this "Jesus stuff" on their
premises. Additionally, residents of the facility were
allowed to use the common rooms for all sorts of secular
meetings. However, one of the residents asked to use the
same common room for a Bible study with other residents, and
this request was refused.
In Duval County, Florida, the school adopted a
memorandum dealing with graduation messages. The memorandum
stated that the graduating senior class could have the
opportunity for two minutes to present an opening and/or
closing message at the graduation
ceremony. If they chose to present a message, the senior
class would select a student volunteer from the senior
class. No outside person could present the message. The
school indicated that it would not censor the content of the
message, nor would it require a pre-review of the message.
Of the seventeen schools, eleven of the graduating senior
classes chose to have a student present a message which
could be construed as religious. The remaining schools chose
either to not have a message, or the message was secular in
nature. Notwithstanding, the American Civil Liberties Union
brought suit against the school asking the federal court to
censor out only the religious aspects of the senior
* * * *
In another case, a community college student was
elected by her class peers to say a prayer at their nursing
school graduation service. The student accepted the
invitation from her fellow classmates and her name was
printed in the graduation brochure. However, the nursing
director told the student that she could not say a prayer,
and insisted she say something secular, giving her a poem to
recite. When the student refused to read the secular poem
instead of saying her prayer, the director revoked the
invitation, the evening before graduation. The graduation
ceremony proceeded with the student's name listed in the
program, but the student was prohibited from being on the
platform. This graduate was an exemplary student and was
well-liked by her classmates. Her classmates realized that
faith played a major role in her life, and therefore honored
her by asking her to say a prayer. Instead of graduation
being a joyous time, the student was devastated and her
classmates were disappointed.
Notwithstanding the Equal Access Act, student-initiated
Bible clubs on public
school campuses are still frequent targets of
For example, schools have allowed secular clubs to meet
during the day but require the religious clubs to meet only
after school hours, which results in low attendance at these
clubs because of the inconvenient meeting times.
* * * *
Other schools have allowed students to have secular
clubs pictured in the annual while barring the religious
* * * *
Alternatively, schools have allowed secular clubs
access to bulletin boards while still censoring access to
board by the religious or pro-life clubs.
* * * *
A new twist has occurred in the state of New York where
the school has adopted a nondiscrimination policy similar to
what is currently found in employment discrimination. This
particular school forbade a religious club from requiring
that its officers be Christian. The nondiscrimination policy
states that the students clubs cannot discriminate on the
basis of race, national origin, sex, religion, creed, or
disability. That means that for a Christian Bible Club to
operate, it must agree not to require that the officers of
the club be Christian. In other words, a Christian club
would have to agree that its president could be an Atheist.
No similar requirement is being placed upon the secular
clubs. The requirement of the Christian clubs is as
ludicrous as requiring a black student club to have a white
supremacist for its president. Nevertheless, the federal
district court ruled that such a nondiscrimination policy
applied against a religious student club was permissible,
notwithstanding the fact that it would require the
Christian club to accept an Atheist as its president. (106)
A public park in Columbus, Ohio, permits all forms of
secular expression. The city banned the private display of
the cross during the Christmas season but allowed the public
display of a Jewish Menorah during the same season,
reasoning that the cross was a religious symbol but the
Menorah was a secular symbol.
In New Port Ritchie, Florida, the city displayed both a
nativity scene and a Jewish Menorah, but a Jewish Rabbi
objected to the display of the nativity of scene. The
nativity scene was taken down, but after some controversy,
was placed back up by a 4-3 vote.
A school board office had displayed a Christmas tree.
Underneath it one employee placed a nativity scene, but a
school official required the removal of the nativity scene,
stating that it violated the separation of church and state.
The same schizophrenia occurred within the postal department
during Christmas of 1994.
I could continue to go on ad infinitum. Suffice it to
say that religion is a target of frequent discrimination. We
are all familiar with the religious harassment guidelines
proposed by the EEOC. It appears that the intent of these
guidelines, though thankfully defeated by
100. Hsu v. Roslyn Union Free School District No. 3,
876 F. Supp. 445 (E.D.N.Y. 1995). This case is presently on
appeal to the Second Circuit Court of Appeals in New York.
Congress, is now being implemented by the Internal Revenue
It is time for an amendment to the Constitution to
protect religious equality. In view of the loss of free
exercise rights, and the hostile attitude of the courts
toward religion, when applying the Lemon test, it is time
that people of faith have protection against discrimination.
Such protection should not be a form of special rights, but
equal rights. Nor should the protection permit teacher-led
or state-mandated prayer, but it should permit student
initiated expression. Religious expression should be
protected during times and in places where secular
expression is also permitted. It is ironic that we have come
180 degrees from the former Soviet Union. Today, the former
communist government invites missionaries from America to
come to their public schools to teach Bible in the
classroom. Here, we have to go to federal court to maintain
the right to carry a Bible to school. When discrimination
against religious expression and religious people has
reached such an epidemic proportion, it is time that
something must be done to protect our God-given religious
liberties. Thank you, Mr. Chairman.
107. See testimony by Ernest J. Is took, Jr. before the
House Judiciary Committee on June 8, 1995.