Christian ordination rights and the Constitution

The 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.

One 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.

The 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.

SECULAR 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.

The 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";

In 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.

PRIMARY 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."

However, 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 prong.

In 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.

In 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 and selective.

As 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 effects:

1. 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.

EXCESSIVE 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 speakers.

Oversight 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.

AVOIDING 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).

There 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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