Written by Dr. Joe Chuman, Leader of the New York Society for Ethical Culture and the Ethical Culture Society of Bergen County, Approved by AEU Board

May 8, 2014 — The prevailing Supreme Court decision in the Greece v. Galloway case, permitting prayer at legislative sessions, including municipal meetings, is another giant step toward the dismantling of the separation of church and state.

The perspective on church state relations on which I was reared and continue to defend as eminently correct, both constitutionally and prudentially, was most clearly articulated by Justice Hugo Black in the Everson case of 1947. In that decision, Black stated:

The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.’

This prevalent understanding was further operationalized by the Lemon Test of 1971. In Lemon v. Kurtzman, the Court determined legislation that pertains to religion must meet three conditions in order to be Constitutional. They are:

1. The statute must not result in an “excessive government entanglement” with religious affairs.
2. The statute must not advance or inhibit religious practice.
3. The statute must have a secular legislative purpose.

For decades the Supreme Court was guided by the Lemon criteria, and we Ethical Culturists can be duly proud that the late Alton Lemon, who brought the case before the Court, was a devoted member of the Ethical Humanist Society of Philadelphia.

Both Everson and Lemon set down strict guidelines for separation. One could argue that separation not only upholds the Establishment Clause of the First Amendment, but also strengthens freedom of religion. Humanist that I am, I nevertheless have never exploited the Establishment Clause merely to suppress religion, but have no less been an advocate for the free expression of religion.

Since the late 1970s, the doctrine of separation, which I contend was the intent of the Founders, has been steadily replaced by a doctrine of “religious accommodationism.” What accommodation presupposes is that it is appropriate for the government to support religion (in direct violation of Lemon) as long as it does not favor one religion over another. In my politico-religious analysis, it has been the politicization of evangelical Christianity that has been the primary engine of this shift, though general conservative discontent with the religion decisions of the Warren Court, which removed organized prayer from the public schools, has been a major driver of the government support of religion in general. Accommodation, which certainly has its legal as well as political defenders, has permitted religion to flood the public square.

Among its legal victories has been the Religious Freedom Restoration Act that greatly widens the scope of religious practice. It is a provision I personally supported. But the RFRA has metastasized into other legal provisions which have empowered religious groups beyond all reason. One such development has been the Religious Land Use and Institutionalized Persons Act. Though applicable to the religious rights of prisoners, its primary application has extended to religious organizations seeking exemptions from zoning provisions that secular institutions need to abide by. This has gone as far as churches and their real estate holdings attempting to evade health and safety codes that apply to the public in general. It’s an egregious and maddening abuse.

When looking at the replacement of the separation doctrine by religious accommodation, a brief survey reveals at least the following encroachments of religion into the public square since the 1970s, where, given my commitments, it does not belong:

• The placement of religious icons on public lands. Think of crèches and menorahs around Christmas and Hanukah time.
• School voucher programs wherein tax payers are forced to pay for parochial religious education.
• The transformation of religious speech into mere speech, allowing for religious clubs and activities in public schools (as long as they are not school-led and there exist other secular clubs).
• The renting of public schools for their use as churches.
• And the biggest abuse of all – the so-called “Faith-Based Initiative.” A giveaway of hundreds of millions of government dollars directly to churches to run social services and bypass federal non-discrimination laws with regard to hiring.

Greece v. Galloway is the next step in this ominous tradition. It not only offends and marginalizes those with no religion or of minority faiths, it is also an affront to religion itself. If religion is to be meaningful, (and many religionists who supported removing prayer from the public schools understood this well) it should be an activity carried on in the house of worship or in the home. Prayers led by your gym teacher, or mouthed as a vapid pieties before a town council meeting debating garbage removal demeans religion as it offends non-believers.

John Locke and the American Founders knew that when religion is conjoined with the arms of state, not only is religion denigrated, society has created a wicked brew of religious absolutism empowered by the power of law and government. Their wise response was to privatize it.

The Supreme Court got it wrong. The prevailing decision in Greece v. Galloway is foolish, if not un-American. It’s part of a growing trend, now dominant, that is also very dangerous.