ordination rights and the Constitution
first amendment to the Constitution of the United States provides
the following protection: 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.
court summarized the protection of the first amendment thusly: "The
amendment protects freedom of (religious) speech and expression
of view. It protects the free exercise of religion. And it insures
freedom of religious worship by prohibiting the government from
any establishment of religion.
Supreme Court articulated a three prong test in 1971 to determine
whether a statute or government policy will offend the establishment
clause of the first amendment. In Lemon vs. Kurtzman, (403 U.S.
602, (1971), the court said that: "First, the statute must
have a secular legislative purpose; second, its principal or primary
effect must be one that neither advances nor inhibits religion;
and finally, the statute must not foster an excessive government
entanglement with religion.
PURPOSE: The government act in
question must not have a religious purpose. The Supreme Court has
explained that there can be no "Animus of Religion" in
the design or goal of the program. Religious tests for public employment
are unconstitutional, per se. But, the court has also made clear
that the presence of religious purposes would not doom a law or
practice, as long as there was also a secular purpose.
court has invalidated legislation or governmental action on the
ground that a secular purpose was lacking, but only when it has
concluded there was no question that the statute or activity was
motivated wholly by religious considerations. Even where the benefits
to religion were substantial we saw a secular purpose and no conflict
with the establishment clause." Id. at p680. accord, Wallace
V. Jaffree, Van Zandt V. Thompson, where the 7th Cir. Ct. of appeals
held that the prayer room in the state capitol has the secular purpose
of promoting meditation: "The resolution (Authorizing the Prayer
Room) suggests that (The Legislators) may legislate better for having
taken some time to think quietly";
Carter V. Broadlawns Medical Center, a case challenging a hospital
Chaplaincy program, the 8th Cir. held that the district court plainly
erred by focusing almost exclusively on the religious purpose in
isolation from the larger context, which reveals a valid secular
purpose (To Help The Patients Get Well). Thus, as long as there
is a valid overall SECULAR PURPOSE, there may be religious benefits
to the program without violating the first prong of the lemon test.
EFFECT TEST:The second prong of
the Lemon test states that the principal or primary effect of a
law or program must be one that neither advances nor inhibits the
practice of religion. Just because a program has a "primary"
effect to promote some legitimate secular end, nevertheless the
program may be further examined to ascertain whether it also has
the direct and immediate effect of advancing religion. "Secular
objectives no matter how desirable and irrespective of whether judges
might possess sufficient sensitive calipers to ascertain whether
the secular benefits outweigh the sectarian benefits, cannot serve...
to justify... a direct and substantial advancement of religion."
the impact on religion must be direct and substantial. Where government
action does not directly endorse religion or a particular religious
practice, its primary secular effect is not rendered unconstitutional
merely because it happens to harmonize with the tenants of religions.
The mere fact that a religious organization receives an incidental
benefit under a government policy does not violate the privacy effect
Lynch vs. Donnelly, the Supreme Court stated that their precedents
plainly contemplate that on occasion some advancement of religion
will result from government action, but not every law that confers
an "indirect", "remote", or incidental benefit
upon religion is, for that reason alone, constitutionally invalid.
However, the Court said focus exclusively on the religious component
of any activity would inevitably lead to its invalidation under
the establishment clause.
Carter vs. Broadlawns, the hospital Chaplaincy program was challenged
on the grounds that it violated the effect test by providing financial
aid to enable persons in its care to practice their religions. While
the district court concluded that paying a Chaplain to provide religious
care is an advancement of religion, the 8th Cir. noted that some
financial benefit to religion can be tolerated in applying the Lemon
test. It distinguished the neutrality of employing a counselor with
the versatility and training to help persons all along the continuum
of religious dispositions from cases where the effect was more direct
the Court stated in Voswinkel vs. City of Charlotte, supra, "The
agreement here (between the city and Providence Baptist Church)
necessarily has several obvious, direct, and constitutionally impermissible
It provides for a publicly funded position that must, under the
terms of the agreement, be filled by a "Minister". To
the extent that one's status as a minister depends on some degree
of adherence to the creed of, and is subject to control by, the
denomination one serves, the agreement necessarily imposes a religious
test for eligibility to a publicly funded office.
ENTANGLEMENT TEST: The final question
under the Lemon test is whether the challenged practice gives rise
to an excessive government entanglement with religion. Government
oversight - determining what material is religious and what is not,
inquiries into religious doctrine, detailed monitoring or close
administrative contact - is likely to violate the undue entanglement
prong of the test. For instance, in 1981 the Supreme Court said
that a university would risk greater entanglement by attempting
to enforce its exclusion of "Religious Worship" and "Religious
Speech" than by opening its forum to religious as well as non-religious
of the Chaplains themselves risks undue entanglement. The district
court in the Voswinkel case in North Carolina held there was undue
entanglement because it was not clear to whom the Chaplain must
answer, in the last analysis, in the performance of his duties.
Supra. thus giving Chaplains as much independence as possible in
performing their duties is desirable.
FIRST AMENDMENT PROBLEMS:It is
evident we must be careful to avoid running afoul of the first amendment's
establishment clause. The court in the Voswinkel case, though only
a U.S. District Court, has given some guidance that should withstand
the scrutiny of the U.S. Supreme Court: "The creation of a
counseling position to which any counselor could apply and be considered
on religiously neutral grounds is not a government action that could
reasonably be said to threaten "An establishment of religion".
"The city may, of course, spend money to provide its police
officers with the purely secular services described in the agreement
(between the city and the church).
is nothing unconstitutional in hiring a clergyman to perform those
services, so long as the clergyman is selected as the result of
a religiously neutral process rather than, as here, pursuant to
a contract with a specific church that restricts eligibility to
ministers. Indeed, to reject a job applicant because he is a minister
would violate the first amendment prohibition against government
interference with the "Free Exercise of Religion", as
well as statutory prohibitions against religious discrimination
in employment. Neutrality in religious matters, not hostility toward
religion, is what the constitution requires. The court does not
believe that a public employee, hired as a counselor through some
neutral selection process, is constitutionally required to refrain
from discussing "spiritual" or "moral" matters
in the course of his counseling duties. There is nothing unconstitutional,
per se, in a church's donating money or property to a governmental
entity or in the passage of money from a government entity to a
church for some purpose that does not threaten to assist religion
or to entangle govt. excessively in religious affairs.
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