Where is the fine line between government and religion where one does not encroach upon the other?

That is a great question and to be honest I think you will receive various answers even among Constitutional attorneys. To begin to try to find that line, it must start with the plain language of the Constitution.

While religion is not per se addressed within the body of the main Constitution, religion is addressed within the First Amendment. Many people think about the Constitution’s First Amendment only having to do with free speech but it also includes two sections about religion. The First Amendment reads:

“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.”

Note that the first part says that Congress shall make no law respecting an establishment of religion. That first part has become the predominant subject of many lawsuits and Constitutional issues that have included Christmas displays, public school groups and athletics at public schools, which includes colleges and has even touched some of the various courts which has included the Alabama Supreme Court building. This will be the greater part of our discussion and include a recent opinion by the Attorney General of Texas.

The second part of the first sentence says, “ . . . . , prohibiting the free exercise thereof” which seems to have been relevant in many cases but like the Tenth Amendment which seems to hold little power (The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people) it is largely felt that no one is prohibited from the free exercise of their religious beliefs. When I was in high school in the early to mid seventies I was able to participate in the Fellowship of Christian Athletes, a school group dedicated to talking about our faith not only to each other but to others throughout the school, a morning prayer over the intercom by a student government officer and prayer before athletic events. These were student led, not exclusive of anyone that wanted to be a part and with my recall no one was ever made to be a part of what was done. To get back on point however, citizens can choose to participate in religious worship of any kind and while anything that seems to be endorsed by a governmental entity or publicly funded will for the most part not be allowed by the respective entity tied to our tax dollars, the bottom line is that one is not prevented from overall worship but rather there is a restriction of activities that overlap with that tax funded entity.

As far as “ Congress shall make no law respecting the establishment of religion”, many have long held that the intent of the Framers was to prevent a state religion such as the Church of England. Over many cases it has come to mean that no function of government shall suggest that they favor any religion of any sort. Christmas/ Hanukkah decorations placed in various towns and cities may include a manger scene, a Menorah as well as a neutral “holiday” tree and maybe a Santa Clause. The tree which ties even back to pagans and the Santa Clause are considered historical and while displayed alongside a manger scene have been considered in context as acceptable. There has been a range of events tied with public schools which may only require it be student led to requiring that the event be held off site from the public building.

A recent opinion by the Attorney General of Texas is interesting. Note that the opinion is just that, an opinion and has not yet been scrutinized by a Court so it may be in the end that the opinion is not valid. However, it seems that the Attorney General has thoughtfully considered Supreme Court and lower Court decisions that might impact the events in question.

Montgomery County, Texas, Justice of the Peace, Wayne Mack (he is also the coroner) instituted a program whereby a religious leader of any faith might lead the courtroom in prayer. Prior to the prayers, anyone in attendance is given the opportunity to leave the courtroom with a promise that attendance shall have no effect on the outcome of their case. JP Mack had received a letter of caution from the Texas Commission on Judicial Conduct. Texas Lt. Governor Dan Patrick who has been vocal about his Christian beliefs requested the Attorney General’s opinion.

AG Paxton, in his six-page opinion summarized his opinion saying, “A Justice of the Peace does not violate the Establishment Clause by opening a court session with the statement "God save the State of Texas and this Honorable Court." A court would likely conclude that a Justice of the Peace's practice of opening daily court proceedings with a prayer by a volunteer chaplain as you describe is sufficiently similar to the facts in Galloway (Town of Greece v. Galloway, 134 S. Ct. 1811, 1825 (2014)) such that the practice does not violate the Establishment Clause. A court would likely conclude that the volunteer chaplain program you describe, which allows religious leaders to provide counseling to individuals in distress upon request, does not violate the Establishment Clause.”

The Freedom from Religion Foundation has expressed an interest in the case and anyone “exposed to the prayers” that may wish to sue.

This article is informative only and not meant to be all inclusive. Additionally this article does not serve as legal advice to the reader and does not constitute an attorney- client relationship. The reader should seek counsel from their attorney should any questions exist.

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