Public Venues: Can churches and other religious groups use public facilities?

The U.S. Constitution allows governments (federal, state, and local) to open up their public facilities — such as public-school buildings and public libraries — for use by religious groups. But governments must give religious and secular groups access to those facilities on equal terms. For example, a public school may permit religious groups to hold meetings in its building after school hours, but it may not allow those groups to use the building for free while charging a fee to secular groups, and vice versa.

Whether governments may refuse to give religious groups access to public facilities is a more complicated question. The legal rule is that governments, in granting access to public facilities such as schools and libraries, may discriminate on the basis of subject matter but not on the basis of viewpoint. This means that governments may reserve the use of their facilities for certain kinds of groups or for the discussion of certain topics, but may not exclude groups simply because they are religious or because they discuss approved topics from a religious perspective. In practice, it can be difficult to determine whether a religious group is lawfully being excluded on the basis of subject matter or unlawfully on the basis of viewpoint. For example, the U.S. Supreme Court has ruled that where a public school allowed its building to be used by any group promoting "the moral and character development of children," the school could not deny access to a club that taught children to memorize Bible verses, read Bible stories to them, and concluded its sessions with a prayer. The Court reasoned that the club sought to teach morals and character to children — thus addressing a permitted subject matter — and that the religious nature of the club's teachings simply reflected the club's viewpoint, just as another group could teach morals and character from a secular perspective. On the other hand, a different court has ruled that where a public library allowed its meeting rooms to be used for events "of educational, cultural or community interest," the library lawfully excluded a group that conducted pure religious worship services, on the ground that religious worship was not a viewpoint but rather its own subject matter, on which no secular viewpoints existed.

Finally, we note that the law is different when the public facility at issue is a traditional public forum such as a public street or park, or other property that the government has made widely available to all comers. In such a case the government may not even be allowed to discriminate on the basis of subject matter, which effectively means that it cannot deny access to any religious (or secular) group.

Because this is a difficult area of the law, we welcome you to contact us if you have any questions about whether your government has lawfully granted or denied a religious group access to a public facility. Also, please contact us if you think you know of an instance where the government may have violated the law in this area. Please provide as much of the following information as possible:

1. What public facility is at issue, and what government (federal, state, or local) owns it?
2. What is the government's policy for allowing outside groups to use the facility?
3. What religious group is being granted or denied access to the facility, and what activities are performed and what topics are discussed at the group's meetings?
4. If a religious group is being granted access to the facility, how are the terms of that access different from the terms that apply to secular groups?
5. If a religious group is being denied access to the facility, what is the reason for that denial, and what other groups (religious and secular) are being granted access to it?

Will I receive a thank-you letter for my donation?

Yes, Americans United will send you a written acknowledgement of your mailed or phoned-in donation within three weeks of processing your donation, or an email acknowledgement for your online donation immediately, for tax purposes. 

Why is the Religious Right pushing for the teaching of intelligent design in public schools?

Religious Right leaders view intelligent design as a stepping stone to the introduction of full-blown creationism and religion into public schools. Phillip Johnson, one of the main proponents of intelligent design, pioneered a strategy called “the Wedge” in which ID is a vehicle to get people thinking about religion. He argues that by moving the debate from evolution vs. creationism to the question of God's existence, people will be ready to be introduced to “the truth” of the Bible, “the question of sin,” and ultimately Jesus. Proponents of intelligent design are no different than other creationists who want to preach a religious message to students.

Why did I receive another renewal notice, after having just recently renewed?

Thanks so much for renewing your membership!  Remember that mailings are often in preparation up to several weeks before being mailed, so your donation may have been processed just as a reminder was going into the mail.  Please let us know if you do not receive an acknowledgement for your contribution within three weeks. 

Why are some religious groups so obsessed with this issue?

They hope to get their definition of marriage made the law of the land through the Constitution. If they are successful, a view of marriage held by some, but certainly not all, religious groups will be imposed on all Americans. The major proponents of the plan have made their argument in explicitly religious terms. They have offered no compelling secular reasons for changing the Constitution in this way. On Feb. 5, 2004, President George W. Bush talked about the need for the amendment to protect the “sanctity” of marriage. Formally endorsing the amendment on Feb. 23, Bush said marriage between a man and a woman is “the most enduring human institution, honored and encouraged in all cultures and by every religious faith.” As noted above, the assertion that all religious faiths have defined marriage as only between a man and a woman is highly inaccurate.

Leaders of the Religious Right sometimes admit that the marriage amendment is based on their interpretation of religion. Joel Belz, publisher of the evangelical magazine World, wrote recently, “We may not like to admit it, but when you leave God’s design out of the argument, there’s really no reason any longer to limit marriage to a man and a woman.”

Who’s behind the drive for a marriage amendment?

The effort to enact a marriage amendment is unquestionably driven by large and powerful religious movements that seek to impose their traditions’ views on marriage into the U.S. Constitution. Leaders of all major Religious Right organizations, including the Southern Baptist Convention (the nation’s largest Protestant denomination), met in a Washington, D.C., suburb in October 2003 to plot strategy on this issue. Those present at the “Arlington Group” session ranged from James Dobson and Jerry Falwell to Paul Weyrich and William Bennett. According to press accounts, these right-wing activists agreed to seek the most sweeping constitutional amendment possible in order to ban not only gay marriage, but also civil unions and hundreds of other government rights and benefits enjoyed by gay and lesbian families.

In addition to the Religious Right, the amendment drive is fueled by the Roman Catholic hierarchy. On Sept. 11, 2003, top leaders of the U.S. Catholic bishops endorsed efforts to add such an amendment to the Constitution. The move is in keeping with a July 31, 2003 statement from the Vatican that instructed all Catholics to oppose same-sex marriage and advised Catholic elected officials that a vote in favor of same-sex marriage would be “gravely immoral.”

Who are your members and how are you funded? Do you accept any government funding?

Americans United is a national organization with members in all 50 states. We are headquartered in Washington, D.C., and led by the Rev. Barry W. Lynn, executive director. AU has more than 75,000 members from all over the country. They include people from all walks of life and from various faith communities, as well as those who profess no particular faith. We are funded by donations from our members and others who support church-state separation. We do not seek, nor would we accept, government funding.

Where is the “separation of church and state” in the Constitution?

The First Amendment's religion clauses state: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” The Establishment Clause forbids more than the establishment of a national religion; it also forbids laws or actions respecting an establishment of religion. As James Madison, Father of the Constitution, put it “The Constitution of the U.S. forbids everything like an establishment of a national religion.” In a January 1, 1802 letter, President Thomas Jefferson wrote of the intended relationship between religion and government: “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibit the free exercise thereof, thus building a wall of separation between church and state.”

The Establishment Clause sets up a line of demarcation between religion and government in our society, and the Supreme Court determines where the line is drawn to accommodate liberties in our ever-changing society. Although the exact language is absent, the Supreme Court has repeatedly determined that the Constitution does indeed call for separation between church and state.

Jefferson's “wall of separation between church and state” was first noted by the Supreme Court in an 1878 opinion by Chief Justice Morrison Waite. Justice Hugo Black later reaffirmed the wall's significance in the landmark case Everson v. Board of Education (1947). Black wrote “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.'” The wall forbids government to actually or effectively favor one religion over another, favor religion over non-religion and vice-versa. Requiring neutrality removes the authority of government from religious practice and protects each citizen's right to express his or her personal beliefs.

What is intelligent design?

Intelligent design, or ID, is a modified version of creationism promoted by Religious Right activists who have been unable to get full-blown creationism taught in public schools. ID purports that life on earth is too complex to have evolved through natural selection, and therefore must be the product of a “designer,” or “intelligent force.” 

What is Americans United's mission?

Americans United (AU) is a nonpartisan organization dedicated to preserving the constitutional principle of church-state separation as the only way to ensure religious freedom for all Americans. 

What is a “law respecting an establishment of religion”?

The Supreme Court has used a variety of methods to decide if a government action amounts to religious establishment. Unconstitutional actions typically lack a secular purpose or have the principal effect of advancing or inhibiting religion. Religiously motivated actions violate the basic idea that government should concern itself only with civil matters and leave religion to the individual's conscience. Expressive actions, such as prayer at government-sponsored events or religious symbols on government property, are invalid if they effectively endorse or disapprove of religion. Justice Sandra Day O'Connor designed the “endorsement test” to thwart government actions that link one's religion to his or her standing in the political community. In her words, government endorsement of religion sends a “message to non-adherents that they are outsiders, not full members of the political community," and the "accompanying message to adherents that they are insiders, favored members of the political community.”

What are AU’s membership dues?

A basic annual membership with AU is $25 a year.  (You are, of course, welcome and encouraged to support our work with a larger donation!)  In addition to providing much-needed funding for our many legal, legislative, grassroots and education efforts, your financial support entitles you to receive 11 issues of our award-winning journal Church & State and periodic updates on pressing religious liberty concerns.  Additional benefits are given at higher levels of contribution.

What about equal time?

 Religious Right activists often argue that students would benefit from teachers giving equal time to learning about ideas other than evolution. They claim that the more young people learn about different ideas, the more educated they will be. The problem with this claim is that intelligent design is not just another idea or scientific theory. It is a religious teaching that has no place in public school science classes. When ID advocates ask for time in science classes, they are no different than other creationists who want to preach a religious message to students. In 1987 the Supreme Court issued a decision in Edwards v. Aguillard that struck down a Louisiana law that required public schools to offer “balanced treatment” between evolution and creationism. No federal court has ever upheld school-sponsored religious indoctrination.

Ten Commandments Displays: Can the government display the Ten Commandments on public property?

As a general rule, the government may not display religious items on public property. That rule applies to displays of the Ten Commandments, just as it does to any other religious symbol. Thus, for example, the U.S. Supreme Court has held that it is unlawful to require the posting of the Ten Commandments in public-school classrooms.

The courts have recognized certain circumstances, however, in which the government may display the Ten Commandments on public property. Whether the display is constitutional depends on its context: why the government erected it, and how it appears to a reasonable observer.

First, the government's purpose for displaying the Commandments must be secular. To determine purpose, courts look to a variety of factors — the display's history, including government officials' statements in approving or unveiling the display; the contents and character of items on display along with the Commandments; and the facts surrounding the placement of the other items. The Supreme Court struck down Ten Commandments displays in two county courthouses, for example, even though other, secular items were posted alongside the Commandments, because of the displays' histories: the counties had initially posted the Commandments alone, during a ceremony that included a speech by a religious official; then after being sued, they posted other documents with religious references in them; and finally, the counties replaced the other documents with historical ones that lacked a clear unifying theme. Based on this context, the Supreme Court concluded that the final displays — which were entitled "Foundations of American Law" and included many historical documents along with the Ten Commandments — were still intended to promote a religious code and therefore were unconstitutional.

Second, a display including the Ten Commandments is constitutional only if a reasonable observer would conclude that the government is neither endorsing nor promoting religion with it. In applying this rule, courts look to the same contextual factors used to assess a display's purpose. They consider, among other things, whether a secular theme, such as law or history, unites the Ten Commandments with other items on display, thus communicating a genuinely secular message. And the courts consider whether the display is longstanding and thus has historical significance, and whether the display's physical setting lends itself to reverence of the Commandments as a sacred item. Thus, the Supreme Court upheld a 40-year-old Ten Commandments monument on the Texas state capitol's grounds because, when viewed in context with the thirty-seven other, historical monuments on the grounds, it conveyed a secular message, and its physical setting did not lend itself to religious activity. Based on this context, the Court concluded, a reasonable observer would conclude that the State was not endorsing the Commandments' religious aspects. That the monument prominently acknowledged its private donor further distanced the State from the religious aspect of the Commandments' message, although the Court cautioned that this fact alone would not render the monument constitutional.

In sum, whether a Ten Commandments display is constitutional depends on a complex array of factors, so determining whether a display is constitutional can be difficult.

If after reading this description of the law, you continue to suspect a constitutional violation, please contact us and provide us with answers to the following questions:

1. Describe the display about which you are concerned: size, material, complete contents, appearance, etc.
2. Where, specifically, is the display? Please tell us whether it is indoors or outdoors; where it is located within the building, park, or other venue relative to entry points and other landmarks; its overall setting, etc.
3. Are other items displayed in the Ten Commandments' vicinity? If so, please describe their contents, size, location, etc.
4. If you know, tell us who placed the Ten Commandments on display. Was there any unveiling ceremony or other official action when the Commandments display was posted or erected? Has the display changed over time? If so, how?

Teaching of Religion: Can religion or religious materials be incorporated into the curriculum in public schools?

The Establishment Clause of the U.S. Constitution requires the government to be neutral with respect to religion, and courts are especially diligent in upholding this requirement in the context of public elementary and secondary schools, as students are legally required to attend school and school children are more impressionable than adults.

• Bible courses: Because the Bible has considerable significance in Western literature and history, it may be incorporated into a public-school curriculum. But any course focused on the Bible must be taught from a secular, objective perspective, and must use materials written from a secular, objective perspective. This means, for example, that a public school may not teach students that what is written in the Bible is the truth, or that those who follow the Bible's teachings will be saved or are superior to others. The courts have found many Bible courses to be unconstitutional, and they have been particularly skeptical of Bible courses that were developed by private religious organizations with the intent of spreading the Christian faith (such as the National Council on Bible Curriculum in Public Schools).
  
• Creationism and intelligent design: Religious theories on the origins of life — such as creationism, "creation science," and "intelligent design" — may not be taught in public schools, not even as alternatives to the scientific theory of evolution. Encouraging students to explore evolutionary theory critically, while offering a religious theory as the only alternative to evolution, is sufficient to send an unconstitutional message of religious endorsement.
  
• Religious assignments and instruction generally: Religion may be studied as the subject of a secular, objective, and academic inquiry. It may not, however, be incorporated into public-school curricula for the purpose of moral instruction. Moreover, teachers may not give assignments or make comments that create the impression that the teacher, or the school at large, endorses religion or favors a particular religion over others.

If, after reading this summary of the law, you think you have encountered an instance of unconstitutional religious instruction in a public school, please contact us. Please provide as much of the following information as possible:

1. What kind of religious instruction occurred, and what educational materials were used as part of that instruction?
2. Was the instruction part of the school's official curriculum, or did it occur on the teacher's own initiative?
3. Was this the first time the school or the teacher gave religious instruction? If not, were complaints previously made to the principal, the superintendent or any other official?
4. Aside from religious instruction, are there other signs that the teacher or the school endorses a particular faith (such as religious posters on the classroom walls, Bibles on the teacher's desk, or religious holiday celebrations in the school)?

See You at the Pole: Can public-school students and teachers participate in See You at the Pole events?

"See You At The Pole" is an event where students gather at their school's flagpole on a designated day (usually the fourth Wednesday of September) and at a designated time (usually before the beginning of the school day) to pray. The event is generally evangelical and Christian in nature. Ordinarily, See You At The Pole events are organized as student-run activities and follow the same general rules as those for student-run religious clubs (see the FAQ entry on religious clubs in public schools). Thus, teachers may not participate in the religious aspects of the event, although they may be present to supervise the behavior of students in order to ensure, for example, that no student is hurt and no school property is damaged.

Alternatively, See You At The Pole events may be organized and run by local clergy or by some other outside group. If so, then they should follow the general rules for use of public property by religious groups (see the FAQ entry on use of public facilities by religious groups). Outside persons who come onto school property for a See You At The Pole event should not communicate religious messages to students who do not participate in the See You At The Pole activity.

If after reading this description of the law, you continue to suspect a constitutional violation, please contact us and provide us with answers to the following questions:

1. Who organized the event? Who ran the event?
2. How was the event advertised?
3. Who was present at the event? How did they participate at the event?

School Vouchers: Can the government fund religious schools through school-voucher programs?

A school-voucher program is permissible under the U.S. Constitution only if the families who receive the vouchers are genuinely free to use them at any one of a wide array of secular and religious schools, and the government does not encourage attendance at parochial schools over secular options or otherwise design the program to favor religious schools or families whose children attend those schools. Nor may government make it more attractive for religious schools than for secular schools to participate in the voucher program.

Even if a school-voucher program is permissible under the U.S. Constitution, however, it may well violate the constitution of the state in which the program operates. Thirty-seven of the fifty state constitutions contain stricter limits on aid to religious schools than the federal constitution does, and many states have constitutional provisions that may forbid school-voucher programs altogether. Courts in Arizona, Colorado, Florida, and Vermont have already struck down school-voucher programs because they violated those states' constitutions, even though the programs would not have violated the U.S. Constitution.

Finally, while the U.S. Constitution and some state constitutions may permit the government to provide vouchers that may be used at religious schools, there is no requirement that the government do so. The government has some discretion in deciding whether to exclude religious education from school-voucher programs, although courts have disagreed to some extent about how much discretion the government has.

If, after reading this summary of the law, you think that you have encountered an illegal voucher program, please contact us. Please provide as much of the following information as possible:

1. Which governmental entity (e.g., the state, the county, or the city) runs the voucher program?
2. Which groups of students or parents are eligible to receive vouchers?
3. At what kinds of schools, and towards what kinds of expenses, may the vouchers be used?
4. What proportion of schools participating in the voucher program are religious schools, and what proportion of participating students use the vouchers to attend religious schools?
5. Do religious schools or students at religious schools receive preferential treatment in the awarding of vouchers? If so, how?

Religious School-Clubs: Can students in public schools form religious clubs?

We will post an answer soon - please check again!

Religious Music in Schools: Can public-school groups and classes perform religious music?

Public-school teachers may not assign religious songs because of their religious content. But courts have recognized that some religious-music selections can be included in school performances when the pieces are selected for their secular merit. If religious songs are included, a mix of secular selections should be chosen as well. If, for example, at a Christmas concert a school selects "Silent Night" or "Joy to the World," then it should also select "Silver Bells" or "White Christmas."

Furthermore, schools must make certain that performances do not essentially become church services. To that end, some courts have ruled that prayers (such as the Lord's Prayer) set to music are always impermissible because a prayer is a religious exercise, and that is so even when the prayer is sung rather than recited. Moreover, some courts have prevented performances of contemporary popular music with explicitly religious lyrics. Recently, a federal court halted a third grade class's assembly performance of a country-music song called "In God We Still Trust" because of the distinctly religious content of the song.

If religious songs are included in a music class, teachers should allow students to opt out of performing those songs — with no reduction in grade or other penalty. Otherwise, the school risks coercing the practice of religion by students.

If after reading this description of the law, you continue to suspect a constitutional violation, please contact us and provide us with answers to the following questions:

1. If possible, please provide a full list of songs that have been or will be played or sung.
2. Do students receive credit for participating in this music group?
3. When does the group practice?
4. Who leads the group?
5. Are students given the opportunity to opt out of singing religious songs, and are they penalized for doing so?

Religious Flyers: Can school officials, students, or outside groups distribute religious materials to public-school students?

The law about distribution of religious materials in public schools is complicated, because it implicates both the constitutional free speech rights of the persons distributing the materials and the U.S. Constitution's Establishment Clause, which prohibits government (including public schools) from endorsing religion. If, after reading this short summary, you still have questions about the constitutionality of a particular distribution or restriction on distribution, please do not hesitate to contact us.

• Distribution by outside groups: Public schools may not allow outside groups to enter school grounds to distribute Bibles or other religious materials to students. Nor may schools assist such groups in distributing religious materials to students off school grounds. But many courts have allowed schools to pass along to their students flyers and announcements from religious groups, provided the schools do so as part of a system that applies equally to flyers from secular groups, and provided they do not endorse the religious groups' flyers. (Some courts have also looked at whether the religious groups' flyers contain proselytizing language.) Courts have thus allowed schools to include religious groups' announcements in students' so-called "Friday folders" — folders given to students in class at the end of the week containing all announcements from community groups for students to take home with them. Indeed, if schools generally pass along outside groups' materials to students, they must allow religious groups to be included, provided the materials relate to a permissible subject matter (e.g., "community events").
  
• Distribution by school personnel: Aside from passing along materials from outside religious groups as part of a neutral distribution system (discussed above), teachers, administrators, and other personnel of public schools may not distribute religious materials to students, just as they may not proselytize or endorse religion to students in other ways.
  
• Distribution by students: Whether a public school may allow a student to distribute religious materials to other students on school grounds depends on the context in which the distribution occurs. If the student wants to distribute such materials during non-instructional time (such as during recess or lunch, or in between or after classes), the school may prohibit or limit the distribution only if it would substantially interfere with the work of the school or impinge upon the rights of other students. On the other hand, if the student wants to distribute religious materials in class or during some other part of the school's curriculum, the distribution is more likely to be viewed as having been approved by the school, which means that the school has much greater latitude in prohibiting or limiting the distribution — the school only has to show that its restrictions were "reasonably related to legitimate pedagogical concerns." For example, a court has ruled that where a school created a simulated marketplace in its gymnasium as part of the fifth grade's curriculum, the school was permitted to prevent a student from selling to his fellow students candy canes to which he had attached cards bearing a religious message. Generally, the younger the students are, the more leeway a school has in restricting their distribution of materials to others.

If you think you may have encountered an unconstitutional distribution of religious materials in a public school, or a public school's unconstitutional restriction on a distribution of religious materials, please contact us. Please provide as much of the following information as possible:

1. Who distributed or sought to distribute the materials?
2. What kind of materials were they, and did they contain proselytizing language?
3. When and where were the materials distributed (or are to be distributed) — in the classroom, as part of the school's curriculum, or during non-instructional time?
4. How old were the students for whom the materials were intended? And if the person distributing the materials was a student, how old was he or she?
5. What is the school's policy on distribution of materials on school grounds?
6. If the school restricted the distribution of religious materials, what restrictions were imposed?

Religious Assemblies: Can religious organizations perform at public-school assemblies?

A religious organization, like any other outside group, may be allowed to perform at public-school assemblies, but the religious organization may not use the opportunity to present or distribute religious messages. A public school violates the Constitution if it allows an invited group to offer a prayer, to speak about its religious beliefs, to play religious music, to display religious symbols or art, to promote a sectarian event, or to otherwise advance a religious viewpoint.

If a religious organization was invited to your public school and used that opportunity to proselytize or advance its religious beliefs, please contact Americans United for assistance. Please tell us:

1. When was the assembly? Was it during the school day?
2. Were students required to attend?
3. How old were the students who attended?
4. What religious group was invited?
5. What was the purpose of the assembly?
6. In what ways did the group advance its religious message during the assembly?
7. Is the group scheduled to participate in future assemblies?
8. Did the group or any teacher, administrator, or other school official invite students to attend other programs after school hours or off school grounds? If so, please describe the event(s) to which the students were invited, giving as much detail as possible.