God Help Us: The Status of Religious Rights in the Public School System

   by Diane Rufino, April 13, 2011

Young adults often wonder what their rights are in the public school system with respect to religion. On the one hand there is the First Amendment right to religion itself (free exercise and the freedom from being forced to belong to a religion established by Congress), and then there are a plurality of Supreme Court decisions which have interpreted the First Amendment, there are the views of religious groups and atheist groups, and then finally there are anti-religion “watch” groups which are ever vigilante to make sure that religion (in any form) is not brought up in schools or in any other public/government-sponsored activity.  And then caught in the middle of all this are the children themselves who have Constitutional first amendment rights but don’t know what they are and what they are entitled to. They rely on the school to look after their rights and they are often advised, or pressured, by parents who have strong religious views.  But as our schools become diversified and as our society places a greater emphasis on diversity and a progressive new social order, there appears to be a concerted effort to maintain neutrality in classrooms on a number of areas, most notably religion. Schools cannot be seen as promoting one religion over another or showing preference to one religion over another.  Students cannot be made to feel that their particular religion is inferior or is not respected.  Neutrality seems to be the key.

But have we gone too far ??   Don’t you think that a country that was founded on certain religious principles has a right and an obligation to honor those principles and promote those principles?  Isn’t there an obligation to educate our children about our underlying values and the religious foundations for our laws?  Isn’t it simply an exercise in patriotism?  We all sit back and enjoy our freedoms but do we truly understand where they come from and how they are protected?  Essentially, our rights are integrally related to something as simple as our official national motto:  “In God We Trust.”  Yes, it comes down to religion and the acknowledgement of a God.  Have we forgotten the words of our Charter of Freedom: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed….”  The Declaration is not a difficult document to read or understand.  In our country, a man is born free and equal not because the government says so but because the government is forbidden to declare otherwise. Our Constitution forbids it to do so.

Look how the Declaration of Independence and our Constitution fit together.  First, the Declaration proclaims to the world that in the United States we acknowledge that there is a God – a “Creator” – who supersedes any government and whose intention it is that all men are to live free and to reap the benefits of such freedom. If all men are bestowed with innate liberties, then all men must be on equal footing and therefore are equal. The Declaration then states: “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed..”  This statement outlines the very purpose of our Constitution —  “To secure our rights.”  (To secure the rights that God has bestowed upon us).  And finally comes our obligation to protect this very special arrangement — “governments are instituted among Men, deriving their just powers from the consent of the governed.”  The federal government is a creation of We the People.  It gets its “just” powers from us.  The dictionary defines “just” as “morally right and fair.”  If we aren’t “just,” then our government will not be “just.”  Our republic is simple. As human beings, we have been gifted a magnificent brain and reasoning powers (gifts that have still not “evolved” in other species) and the freedoms to develop those gifts to the fullest.  Our lives are to be defined by how well we develop our gifts and how ambitious we are in furthering those pursuits.  Our government is charged with protecting our freedoms so that we can enjoy Life and pursue Happiness (which includes property and intellectual property, or career).  To make sure that our government does just that, our Founders tied the government intimately with those who have the greatest interest in liberty – “We the People.”  We are the keepers of the government.  We are the watchdogs of our own liberties.  We send the people who run government, we determine its character, we determine its policies, we determine whether it runs as it should, we determine whether it adheres to our Constitution, and we determine whether it follows that one true formula that can assure that our liberties will be protected and our country will stand the test of time.  That formula includes God.  It always has.  And our children need to learn this as future guardians of their liberty.

Some of our most aggressive anti-religion activists want their cake and eat it too.  They want the complete freedom to speak and express themselves but they want a country without God. They want to bash our country and bash God with the very rights that God has provided them.  They fight hard to remove any mention of God or religion in public life by exercising rights legally recognized as coming from our Creator. They bite the hand that feeds them. They want the life-giving milk that the cow produces but they want to kill the cow. Newt Gingrich once said: “”I think a country which was founded on the premise that our rights come from our Creator has some right to decide that our Creator can appear in public life.”

Constitutional law is a fascinating area of law.  In looking at any one part of the Constitution, I like to understand why it was written and I like to look into the historical context for those reasons. History never occurs in a vacuum.  I will not accept a liberal or progressive explanation because I know the intentions are only to evolve our country into something that history has already weighed in judgment on.  Progressives might wish to consult Machiavelli, who once wrote: “Whoever wishes to foresee the future must consult the past; for human events ever resemble those of preceding times. This arises from the fact that they are produced by men who ever have been, and ever shall be, animated by the same passions, and thus they necessarily have the same results.”  The problem with ignoring history is that each time history repeats itself, the price goes up. We are the last best hope for freedom in the world and we can’t jeopardize what we stand for.  A review of history is therefore crucial.

English settlers came to America starting in the mid-16th century. First they came for exploratory and economic reasons (they wanted to set up settlements to expand trade).  Immediately after that, they came to escape religious persecution and to exercise their religion openly and without government oppression. We remember learning about the lost colony of Roanoke.  In 1585, Sir Walter Raleigh tried to establish a colony called Roanoke in the land which the British named “Virginia,” – in honor of Queen Elizabeth, the Virgin Queen.  The site was actually an island on North Carolina’s eastern seaboard protected by the greater Outer Bank islands.  This bit of history hits home for me because the Outer Banks, a popular vacation spot, is not far from my home.  The Roanoke colony was a settlement for exploratory purposes. Unfortunately, when the second group of settlers came 20 years later, they could find no trace of the Roanoke colonists or colony. The fate of our earliest settlers – this “Lost Colony” –  has never been explained.

The second group of settlers, like the first, also came for economic reasons. They were the settlers, led by Captain John Smith, who came to Virginia in 1606 and established the historic colony of Jamestown – for King James.  This was the great American story were learned about as children and was even the subject of a successful Disney movie. Captain Smith had chartered the colony through the Virginia Company, sponsored by King James, who wanted to start colonizing and establishing trade with the new world.  Although settlers immediately built homes and tried to farm the land, by the first winter, so many had died off that only 32 remained.  It was only through the help of the local Indians, especially Chief Powhatan’s daughter Pocahontas, whose friendship and gifts of food, helped the settlers survive.

Then came the settlers who came to America’s shores to escape religious persecution.  Up until the 1500′s, England was predominantly a Catholic nation.  In the 1534, under King Henry VIII, England broke away from the Roman Catholic Church and created a new church, a ‘reformed” catholic church, which it called the Church of England (or the Anglican Church of England).  The church was “reformed” in that it was influenced by doctrinal philosophies of the Protestant Reformation. Everyone in England was required to belong to the Anglican Church.  Disagreements over the ideals and governance of the Church, including the extent the Church still resembled the Catholic church, led a number of “Separatist” groups to form.  They felt that they Church had not finished the work of Reformation and therefore wanted to break away or formally separate. These included the Puritans, Pilgrims and strict separatists. The differed according to the extent to which they believed the Church of England needed to “reform.”  The strict separatists thought the Church was beyond reform and therefore could not be salvaged.  Separatists were hunted down and imprisoned.

1n 1608, a man named William Bradford, who headed up a group of Separatists called Pilgrims, got word that he would be imprisoned and so he and others in his group picked up and moved to Holland, where there was greater religious tolerance. After several tough years working as a farmer (his trade back in England), he got the idea of leaving Holland and starting a settlement in the New World so they could practice their religion as they wanted.  He approached the Virginia Company and asked for permission to do so.  He was granted a patent and Charter (a land grant accompanied by rules on how to run the colony, just as a Charter runs charter schools) and in 1620, 102 Pilgrims set out on the Mayflower to the New World.  The patent was granted for a colony in Virginia – somewhere north of Jamestown – but the ship encountered rough seas and was blown off course.  The Pilgrims eventually landed in Plymouth Harbor, and as history has recorded, they stepped off the ship onto Plymouth rock (which today is nothing more than a large granite rock about the size of a young boy).  Plymouth Colony was very successful and quickly paved the way for other groups of separatists to make the voyage for religious freedom.

In 1630, John Winthrop secured a patent and charter and led a group of Puritan settlers to New England, where they established the Massachusetts Bay Colony.  Boston would become its capital.  The Bay Colony and Plymouth Colony would soon establish the commonwealth of Massachusetts.  While still on board their ship, the Arbella, John Winthrop delivered a stirring sermon that was so powerful that parts of it were later used in speeches by President John F. Kennedy and President Ronald Reagan.  In order to remind his fellow Puritan passengers of the special purpose which guided them to settle in a new land, he said: “The Lord will be our God, and delight to dwell among us, as his own people, and will command a blessing upon us in all our ways, so that we shall see much more of his wisdom, power, goodness and truth, than formerly we have been acquainted with….  For we must consider that we shall be as a city upon a hill. The eyes of all people are upon us.”

It was no wonder that religious freedom was on the minds of our Founding Fathers.  And it is no wonder that the right to exercise one’s religion freely without coercion from the government was the first of our fundamental rights as listed in the Bill of Rights. Our Founding Fathers considered themselves proud Englishmen and not “Americans,” which was really a derogatory term used by the British to refer to the colonists, and so England’s history was incorporated into our founding documents, including its limitations and failures.

The First Amendment to the US Constitution states:  “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.”  There are actually two distinct clauses which make guarantee our freedom of religion. The first clause, the Establishment Clause, prohibits the government (“Congress”) from passing legislation to establish an official “national” religion. The second clause, the Free Exercise Clause, prohibits the government from interfering with a person’s practice of their religion (except when it involves illegal conduct).  The First Amendment was straightforward and it meant exactly what it said.  The words were chosen very carefully, as a review of the transcript of the debate surrounding the First Amendment in our First Congress in 1789 shows. Many versions were proposed but Congress decided to go with Madison’s version, which was modeled after the Virginia Statute for Religious Freedom, Draft for a Bill to Establish Religious Freedom in Virginia (1779), which was written by Thomas Jefferson. Thomas Jefferson was so proud of crafting the model law for religious freedom in the colonies which led to the First Amendment that when considering his legacy, he requested that his epitaph simply read: “Author of the Declaration of Independence and of the Statute of Virginia for Religious Freedom & Father of the University of Virginia.”

It is abundantly clear from Madison’s version and other versions of the amendment on religious freedom that the United States would be a land where people could worship freely and where the government would never do what they did in England – establish one national religion. The new government would not establish a religion, would not prefer one, and would not compel citizens to worship contrary to conscience. These rights are individual rights, not granted to a particular religion, but instead to citizens directly.

The States, however, would be free to regulate as they seemed fit.  In other words, if they wanted to allow a Puritan community, that was their right, as a sovereign state. After all, if individuals didn’t want to be associated with Puritans, they were able to move to another community, or move to another colony or state.  But that all changed with the 14th Amendment, which was passed as one of the Civil Rights Amendments on 1768. The US Supreme Court has used the 14th Amendment to make most of the Bill of Rights applicable to States and as I’ll explain with Everson v. Board of Education, it specifically applied federal prohibitions to the states with respect to religion. Up until 1897, the Bill of Rights was a list of prohibitions only upon the federal government. Only the federal government could not burden these fundamental individual rights.

Contrary to what most people believe the 14 Amendment provides, the amendment was passed for a very limited purpose. The first clause is the one that we most frequently associate with the 14th Amendment:  “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The first line in the first clause legislatively nullified the infamous Dred Scott decision.  While Dred Scott held that blacks could not be citizens and hence were not entitled to any protection under the Constitution, this line now declared that blacks are citizens. The first clause of the second line is referred to as the “Due Process Clause of the 14th Amendment” and it prohibits state and local governments from depriving persons of life, liberty, or property without proper legal steps being taken to ensure fairness. It is this clause that the Supreme Court has used to apply most of the Bill of Rights to the States. The last clause of the second sentence is the “Equal Protection Clause” that is at the center of almost all civil rights cases.  It requires each state to provide equal protection under the law to all people. That is, each state must apply laws equally to all classes of persons.  Again, the 14th Amendment was passed for specific purposes. It was a Civil Rights amendment, intended to remedy the wrongs done to blacks first by way of slavery (Dred Scott) and then by way of the southern states once slaves were freed to prevent them from assimilating as free and equal citizens – including the Black Codes,  Jim Crow laws, poll taxes, etc.  The 14th Amendment was intended only to acknowledge that blacks were now citizens and to make sure that no state tried to deny them rights of citizenship.

Although the Bill of Rights was intended by our Founders to apply only to the federal government, by the very end of the 19th century, the Supreme Court began to use the Due Process Clause of the 14th Amendment to “incorporate” certain of the Bill of Rights upon the States.  As the Court reasoned, if the 14th Amendment provides that “nor shall any State deprive any person of life, liberty, or property…..” and if there are certain liberties that are “so firmly rooted in the traditions and conscience of our people as to be ranked as fundamental,” then these “firmly-rooted liberties” (ie, certain rights embodied in the Bill of Rights) must also be protected from abuse by the States.  [Grisold v. Connecticut, pp. 413-414]. The first such right was the one embodied in the “Takings Clause” of the 5th Amendment (protection against the taking of property for a public purpose without just compensation) in 1897 and then was the Sixth Amendment’s right to a trial by jury.  In 1947, the Supreme Court decided the landmark case of Everson v. Board of Education, 330 U.S. 1 (1947).  It was a simple case brought in Ewing Township, NJ, where school districts are funded by taxpayer dollars, which asked the question whether school reimbursements could be used by parents to send their children to private religious schools. Mr. Everson, a taxpayer of Ewing Township, alleged that this practice violated the First Amendment and amounted to the township endorsing and supporting religion.  The Supreme Court held that the reimbursements did not violate the Constitution, for parents  had the “choice” and were not forced to send their children where they wanted.

While the Justices were able to reach the ultimate decision about the reimbursements, they took the occasion to make a sharp statement on the interpretation of the First Amendment.  Basically, the decision, written by Justice Hugo Black (a former ranking member of the KKK appointed to the Court by FDR) declared that the First Amendment required a sharp and clear separation between government (of which public education is a function) and religion. Black wrote that there must be a “Wall of Separation” between Church and State.  Although it could be argued that Hugo Black lifted this phrase from the Klansman Creed which, after the KKK resurfaced again in the 1920′s, demanded a “Wall of Separation between Church and State” in order to prevent the growing Catholic population from inserting their views in politics, Black managed to cite a letter written by Thomas Jefferson in 1801 to the Danbury Baptist Association which included that phrase.

In that letter to the Danbury Baptists, who had written Jefferson because of religious persecution they were suffering, our distinguished third president sought to console them by assuring that the First Amendment would always prevent a formal establishment of one religion over another.  Jefferson wrote: “Believing with you that religion is a matter which lies solely between Man & 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 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.”  It should be noted that in Supreme Court jurisprudence, a letter is not appropriate authority. It is not in the list of the types of appropriate authority on which to base a decision.

And yet, Justice Black wrote in Everson: “In the words of Jefferson, the [First Amendment] clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State’……. That wall must be kept high and impregnable. We could not approve the slightest breach.”  It can be easily argued that no metaphor in any American letter has had a more profound influence on law and on policy than this letter by Thomas Jefferson. It can be argued that the United States effectively became a secular society with the Everson decision and its subsequent related cases.  Can we imagine what the self-proclaimed “Founder of Religious Freedom” would say if he knew that a phrase in a single letter effectively removed religion from public life, for it was always his opinion that “Free Exercise” was the more important of the clauses?  His own conduct is a testament to his views.  He used government funding to establish a church in the Congress building which he attended every Sunday but would not establish national days of fasting, observations, etc because that would amount to a government establishment of one particular religion.

Nevertheless, Everson’s strongly-worded opinion paved the way for a series of later Supreme Court decisions that, taken together, brought about profound changes in legislation, public education, and other policies involving matters of religion. Many believe the Everson case undertook a “new” interpretation of the First Amendment and such Chief Justices of the Supreme Court as William Rehnquist (1986-2005) and our current Chief Justice John Roberts (2005-) believe the decision was an exercise of judicial overreaching and should be overturned. This may actually indicate the new direction of the Supreme Court.  Chief Justices immediately following Chief Justice Vinson (1946-1953), whose court decided Everson, continued to interpret the First Amendment as it applied to states and localities. Under Chief Justice Earl Warren (1953- 1969), the Supreme Court decided cases which prohibited prayer in school and then prohibited the reading of the Bible in schools.  Under Chief Justice Warren Burger (1969-1986), the Supreme Court showed a much more relaxed view of religion as it relates to public functions.  For example, his court allowed some degree of religious expression and religious displays as long as it didn’t amount to an “excessive entanglement” of the government with religion and it defended the rights of religious minorities, as it did for the Amish (allowing the Amish community to take their children out of public school after age 16 so they can learn the ways of their community; it was a narrow exclusion because the Amish are such productive, law-abiding citizens). [The Court, however, wasn’t as relaxed in other areas. It was the Burger Court which decided the case of Swann v. Charlotte-Mecklenburg Board of Education, which endorsed forced bussing as an acceptable remedy to end desegregation in public schools].

Following the Everson decision, the ACLU found its niche in championing those cases challenging religion. The ACLU finished the job that Everson sought to accomplish.

Today schools take their cues from progressive organizations such as the Southern Poverty Law Center which are happy to “train” teachers on how to exercise neutrality in their classrooms. For example, on the topic of religion, the SPLC quickly offers a statement of religion promoted by both the Americans United for Separation of Church and State and the American Humanist Association: “The separation of church and state is a complex issue, one with which our nation’s courts and citizenry continue to grapple. In public schools, however, it essentially boils down to a single rule: Don’t promote a specific religion, show favoritism for one faith over another, or even promote religion in general over atheism. Teaching students about diverse faiths and their influences on societies and cultures is constitutional, indoctrinating students or encouraging them to participate in faith activities is not.”  It is clear what that first organization stands for, but are you familiar with the American Humanist Association?  According to their website, this is what the AHA stands for: “We strive to bring about a progressive society where being good without gods is an accepted way to live life. We are accomplishing this through our defense of civil liberties and secular governance, by our outreach to the growing number of people without traditional religious faith, and through a continued refinement and advancement of the humanist worldview.”  They are advancing their agenda on many fronts.  For one, this anti-American activist group is trying to remove the word “God” from our national motto. [They want our Congressmen to vote “NO” to  House Resolution 13, which would reaffirm the official motto of the United States as “In God We Trust”].  You have to ask yourselves: Are these the types of organizations that are best to advise our teachers who thereby captivate and control the minds of our students?

These groups who cherish their right to follow and speak their conscience don’t even realize that the minute that God (our “Creator”) is removed from our collective national conscience, then our fundamental rights cease to be “inalienable” and become “privileges” from the government.  Privileges are at the mercy and discretion of the government.  The government will be free to deny and regulate these privileges all day long.

Back to education, we all know from reading the news that schools are often under scrutiny by those groups and those families who don’t approve of what they may feel is religious indoctrination or religious preference and they often face legal challenges by the ACLU or any other legal group.  At first, the offending school may receive a “cease and desist” letter from the ACLU, or other group, which will cite the conduct that is challenged as potentially unconstitutional and then give the school usually 30 days to comply.  If the school does not, then the next step is the initiation of a lawsuit.  The school will avoid this at all costs because of federal legislation that was enacted about 30 years ago – the Civil Rights Attorney’s Fees Award Act of 1976 – which provides that attorneys successfully suing federal, state, or local governments for violations of constitutional or civil rights are entitled to recover attorneys’ fees from the government (the defendant; the party being sued).  School systems don’t have the money to respond to any alleged infraction and so they will abide by the cease and desist letter. Equally important, schools don’t wish to be seen as showing bias or denying minority students any civil rights.  Therefore, from a school’s perspective, it is very important that teachers know the law and remain in compliance so that school systems don’t face any legal challenges which may burden their very limited funding.  Because of this hyper-fear of litigation and somehow offending one single individual, schools will side with caution and take that approach that maintains complete neutrality and denies students their rightful first amendment religious rights. Because of this hyper fear of litigation, schools are willing to sell their souls to the Devil and receive training by those groups who have an agenda that includes the erosion of our very fundamental liberties.

References: “Maintain Tolerance,” Teaching Tolerance, A Project of the Southern Poverty Law Center.  Referenced at:   http://www.tolerance.org/activity/maintain-neutrality

“Keep it Academic,” Teaching Tolerance, A Project of the Southern Poverty Law Center.  Referenced at:  http://www.tolerance.org/activity/keep-it-academic

The US Constitution

American History Timeline, History Timelines.  Referenced at:  http://www.history-timelines.org.uk/events-timelines/14-american-history-timeline.htm

John Winthrop Calls Massachusetts Bay Colony ‘a City upon a Hill’,” History Tools.  Referenced at:  http://www.historytools.org/sources/winthrop-charity.pdf

First Amendment, Cornell University Law School.  Referenced at:   http://topics.law.cornell.edu/wex/First_amendment

Timeline of the Justices, The Supreme Court Historical Society.  Referenced at:   http://www.supremecourthistory.org/history-of-the-court/

Everson v. Board of Education, 33 U.S. 1 (1947), Cornell University Law School.  Referenced at: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0330_0001_ZS.html

Thomas Jefferson to the Danbury Baptist Association, the Founders Constitution: Amendment 1 (Religion).  Referenced at:  http://press-pubs.uchicago.edu/founders/documents/amendI_religions58.html

Jefferson’s Letter to the Danbury Baptist Association, stephenjaygould.org.  Referenced at:  http://www.stephenjaygould.org/ctrl/jefferson_dba.html

Griswold v. Connecticut, 381 U.S. 479 (1965), Cornell University Law School.  Referenced at:  http://www.law.cornell.edu/supct/html/historics/USSC_CR_0381_0479_ZD.html

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