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ANSWERS

Question #1
If you believe in one religion and your parents believe in another religion, can they force you to worship in their religion against your will? If they do, is that legal and what are my rights? Do I have grounds to sue, if I am being forced to worship in a religion that I do not believe in?
(Submitted by a Fifth Grade Student from PS 113 in New York City.)

Response by LEGAL Eagle #3, an attorney from New York City
The question seems to focus on the Free Exercise Clause of the First Amendment to the US Constitution, which says that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . " However, the US Constitution applies to and governs only "state action". As its name implies, state action is action by a governmental authority, such as the Federal, state or local governments. For example, a Congressional law is state action. A state agency rule is also state action. When there is state action, the Constitution applies; when there is not, the Constitution offers no protection. Accordingly, a Congressional law or a state agency rule could not prohibit the free exercise of religion. However, a family does not have state action. Therefore, the First Amendment does not prohibit a parent from requiring that a certain religion be practiced in a family or even prohibiting that a child worship a religion at all. Consequently, a child cannot sue his parents to assert that a violation of the Free Exercise Clause of the First Amendment has taken place. Apart from the state action problem, the more important underlying concern is the issue of parental discretion. Parents have great discretion over the upbringing of their children. Unless there is abuse or other clear instances of neglect, courts are very hesitant to impose themselves between a parent and a child. Thus, if a minor were to bring a suit against his parents alleging that he could not freely exercise the religion he wanted to because he was required, for example, to attend a church he did not believe in, then a court would most likely lean very strongly to the side of parental discretion and defer to their judgment as to how they wish to raise their child.

Question #2
We would like to read about more Supreme Court cases that deals with Freedom of Religion. Can you tell me where we might find some more recent cases?
(Submitted by an Elementary School Student at Claremont Community 42X in the Bronx.)

Response by LEGAL Eagle #14, a law related educator from Syracuse, NY
You can go to the following website:       Recent Supreme Court Cases
If you perform a search using the keyword "religion" you should get over 100 "hits".  You can also be more specific and add other key words such as: "free exercise," "separation of church and state," or "establishment clause."

Question #3
If one of your peers bad mouths your religion, what legal action can you take?
(Submitted by an Elementary School Student at Claremont Community 42X in the Bronx.)

Response by LEGAL Eagle #1, an attorney from New York City
The First Amendment of the Constitution gives you freedom of religion. That means that the government cannot force you to practice a particular religion or to practice any religion at all. The First Amendment has another part to it that gives people freedom of speech. This means that people are free to express their opinions without having to be scared that they will be punished. This means that someone can badmouth your religion, even if it makes you really mad. There is no legal action that you can take to stop him. While this may seem strange to you, it is a very important principal in our country. If people could not express their opinions on subjects - even opinions that a lot of other people do not like - then they would not really be free. So you cannot take legal action to stop someone from badmouthing your religion, but you have freedom of speech also. This means that you can express your opinion and try to explain to the other person why your religion is good or why that person should be tolerant of all religions.

Response by LEGAL Eagle #3, an attorney from Syracuse
The right to freely exercise one's religion is a fundamental right under the First Amendment to the US Constitution and protects people from the government making any law that would interfere with a persons ability to freely exercise his religion. Another fundamental right is the right to free speech, also guaranteed by the First Amendment, and protects people from the government making any law the would interfere with a person's ability to exercise free speech. In the example raised by the student, there is no government law involved. Thus, if a peer or the local bully, bad mouths and makes fun of your religion, he can do so and there is no legal basis to stop him. The Free Exercise Clause does not apply to this situation because there is only an individual acting in his own capacity and not the government regulating any type of behavior. The First Amendment would only come into play if the government passed a law saying that no one could make comments about religion. This law would be unconstitutional because it violates the First Amendment. However, the right to free speech is not absolute and does not protect all items of speech. For example, "fighting words" are not protected. Fighting words are words which by their very utterance inflict injury or tend to incite an immediate breach of the peace, and stir up acts of violence by the persons to whom the remarks are addressed. Accordingly, if the local bully said remarks about someone's religion to a crowd of people with the intent to incite a breach of the peace, these words could be banned by a law because they are not protected by the First Amendment. But "what legal action can you take?" To take any action, there must first be a law prohibiting such fighting words. For example, in the case of Chaplinsky v. New Hampshire, 315 U.S. 568 (1943), there was a state law that forbade any person from saying "any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place." In this case, as is typical with laws prohibiting fighting words, the law is a criminal law, which means that the government --not the individual himself -- prosecutes the cases. Here, the state of New Hampshire prosecuted the case. There is not individual right to sue. Apart from the Constitutional protections in the First Amendment, there are also Federal laws that protect people from violations of their Civil Rights. If someone were to target a specific person solely because that person is a member of a certain religion, then there could be potential violations of Federal civil rights laws. But once again, the government would prosecute this case, not an individual person.

Question #4
Before the First Amendment (The Establishment Clause) was written, were the Church and Government separate?
(Submitted by an Elementary School Student at Claremont Community 42X in the Bronx)

Response by LEGAL Eagle #2, an attorney from New York City
The First Amendment to the Constitution, which provides that Congress shall make no law establishing religion, was passed in 1791. Prior to that, the federal government operated under the Constitution as it had been originally passed in 1787 which did not contain any provision dealing with religion. To the best of my knowledge, church and state were never considered one institution in the United States. However, prior to 1776, the English were in control of affairs in America. The Church of England (called the Episcopal Church in the United States) is the state religion of England This Church was founded by King Henry VIII of England who was excommunicated from the Roman Catholic Church over his divorce and remarriage. The King or Queen of England is both the head of state and head of the Church of England, although only figuratively. Presently, the real person in charge of the government is the British Prime Minter and the real head of the Church of England is the Archbishop of Canterbury. The importance of the establishment clause of the First Amendment is that the federal government (and state governments by way of the 14th Amendment) cannot require the public to adhere to one religion or another. The courts have also held that the government may not become entangled with religion so as to prevent even the appearance that the government favors one religion or another. Thus, religion is not taught in public schools and the government is not supposed to display religious symbols at Christmas without giving equal time to other faiths.

Response by LEGAL Eagle #3, an attorney from Syracuse
The US Constitution came into force in 1787 and the First Amendment thereto was ratified in 1791. During this four year period, there was no Constitutional requirement mandating the separation of church and state and there may very well have been laws passed by the US Congress that would, under today's Constitutional doctrine, have violated the Establishment Clause. But 1791 is not the end of the inquiry. The rights and liberties in the First Amendment, and in fact the entire Bill of Rights (the first ten amendments to the US Constitution) were originally designed to apply only to the federal government. After the Civil War, the 14th Amendment to the US Constitution was ratified which provided that no "State shall deprive any person of life, liberty, or property, without due process of law." Over time, starting in the 1920s, and particularly with the Warren Court in the 1950s and 1960s, the US Supreme Court has interpreted the word liberty in this clause of the 14th Amendment to incorporate the freedoms of the Bill of Rights that were originally only meant for the Federal government to apply to restrict the state governments as well. Consequently, the rights to, for example, free exercise of religion are now applied, through the Fourteenth Amendment, to the states and restrict their behavior accordingly. Under this "incorporation" doctrine, the Establishment Clause has also been incorporated through the Fourteenth Amendment and applied to the states. Before the Court applied the Establishment Clause to the states, any state could pass laws that established a state religion or used state funds to pay for religious schools. Thus, even though the federal government was bound by the Establishment Clause, a state government could effectively join church and state together. Today, the Establishment Clause applies to local and state governments as well as the federal government thereby effectively separating church and state.

Question #5
If you believe in one religion and your parents believe in another religion, can they force you to worship in their religion against your will? If they do, what are my rights? Do I have grounds to sue if I am being forced to worship in a religion that I do not believe in?
(Submitted by an Elementary School Student at Claremont Community 42X in the Bronx)

Response by LEGAL Eagle #3, an attorney from New York City
The question seems to focus on the Free Exercise Clause of the First Amendment to the US Constitution, which says that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . " However, the US Constitution applies to and governs only "state action". As its name implies, state action is action by a governmental authority, such as the Federal, state or local governments. For example, a Congressional law is state action. A state agency rule is also state action. When there is state action, the Constitution applies; when there is not, the Constitution offers no protection. Accordingly, a Congressional law or a state agency rule could not prohibit the free exercise of religion. However, a family does not have state action. Therefore, the First Amendment does not prohibit a parent from requiring that a certain religion be practiced in a family or even prohibiting that a child worship a religion at all. Consequently, a child cannot sue his parents to assert that a violation of the Free Exercise Clause of the First Amendment has taken place. Apart from the state action problem, the more important underlying concern is the issue of parental discretion. Parents have great discretion over the upbringing of their children. Unless there is abuse or other clear instances of neglect, courts are very hesitant to impose themselves between a parent and a child. Thus, if a minor were to bring a suit against his parents alleging that he could not freely exercise the religion he wanted to because he was required, for example, to attend a church he did not believe in, then a court would most likely lean very strongly to the side of parental discretion and defer to their judgment as to how they wish to raise their child.

Question #6
Is it OK if public school students pray in school?
(Submitted by )

Response by LEGAL Eagle #14, a Law-Related Educator from Syracuse, NY
Students are allowed to pray ON THEIR OWN in public schools. But school officials have some discretion (authority) to make sure that the student praying does not interfere with school instruction.

For more information regarding these policies follow this link:
http://www.ed.gov/Speeches/08-1995/religion.html
Note the section titled, “Religious Expression in Public Schools.”

Question #7
Would a teacher or student asking for a moment of silence, instead of a word of prayer, violate the Constitution?

Response by LEGAL Eagle #14, a law-related educator from Syracuse, NY
Presently about 20 states have “moment of silence” laws.  While some courts have ruled that moments of silence are allowed, some groups are still challenging the legality of these school mandated (required) practices.  See the articles below:
   http://www.firstamendmentcenter.org/rel_liberty/publicschools/topic.aspx?
   topic=school_prayer&SearchString=moment_of_silence

   http://www.freedomforum.org/templates/document.asp?documentID=16183

Question #8
How can states require that children must stay in school until age 16, considering the Supreme Court ruled in favor of Yoder, in the case of Yoder v. Wisconsin?

Response by LEGAL Eagle #21, a law student from Syracuse, NY
Under a state's sovereign "police power", a state is allowed to regulate for the health, safety, welfare, and morals of its community. Therefore, a state may enact a mandatory age of school participation. This rationale is that the more schooling a child has, the better educated citizen he or she will become. This will lead to economic self-sufficiency and involvement in the political process.

Question #9
If there is separation of church and state, why are people asked to swear on a Bible in court?

Response by LEGAL Eagle #9, an attorney from New York City
The simple answer is that practices like swearing an oath which contains an appeal to God or to the Bible are so deeply embedded in the history and tradition of this country that they have been found not to be in violation of the "establishment clause" of the Constitution. See, Marsh v Chambers, 463 US 783, 103 SCT 3330 -[The practice of opening the state legislative sessions with prayer was found not to be improper.] Specifically, the first amendment provides in part that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...". However, the Constitution does not necessarily require complete separation of church and state. See, Lynch v Donnelly, 405 US 668, 104 SCT 1333. The test is whether the thing promotes a particular religious expression over others. If it does, then it is most likely improper or unconstitutional. On the other hand, the requirement of swearing an oath by placing a hand on the Bible is not intended to serve any religious purpose or to support any particular religious belief. Also, an individual can always decline to swear on the Bible and choose to simply "affirm" to tell the truth instead.

Response by LEGAL Eagle #11, an attorney from New York City
This is a very good question. Why do many courtrooms contain the words "In God we trust" behind the judge's bench? Also, this phrase is on coins. Couldn't this and swearing on the Bible be considered an "establishment of religion" in violation of the establishment clause of the constitution?

There has been litigation on this subject by people who have sought to have the phrase In God We Trust removed from courtrooms and coins, but it has not been successful.

However, swearing on the Bible is a little different. It is not meant to establish religion in the courtroom. It is meant to induce witnesses to tell the truth. Swearing on the Bible is an old tradition that goes back hundreds of years. It was meant to put the fear of God into people who believed that they would be punished by God if they lied after having sworn on the Bible to tell the truth.

Response by LEGAL Eagle #8, an attorney from New York City
With respect to the question submitted pertaining to why witnesses at trial are required to swear to tell the truth on a bible, and whether such practice violates the "separation of church and state", I would offer the following for your consideration:

Please see the following Supreme Court cases:
Marsh v Chambers 103 S.Ct. 3330
McGowan v Maryland 336 US 420

The Court has held that the historical nature of the practice and absence of proof of impermissible motive reveals no conflict with the Establishment Clause.

Any action or activity must pass the three part test set forth by the Court in the Lemon v Kurtzman 403 US 602. Viewed in this context, the use of the bible at trial;

1. Has a "secular purpose",
2. Does not have the "primary effect" of advancing a particular religious belief,
3. Does not involve "excessive entanglement" of government and religion.

Question #10
A student asked me, if a person is an Atheist, and is being sworn in at court, does he place his hand on a Bible, and what would he say?

Response by LEGAL Eagle #10, a law clerk attorney from New York City
The procedure that is generally followed when an Atheist is called to testify as a witness in court is that instead of placing a hand on a bible and swearing to tell the truth, the witness will state that he or she affirms under the penalty of perjury that he or she will testify truthfully. This serves the same purpose as the oath.

Question #11
What degree of Christmas or Hanukkah decorations are allowed in public schools? Can you have one without the other?

Response by LEGAL Eagle #15, an attorney and teacher from New York City
Religious holiday decorations have not been prohibited in schools nor on public property; but the governmental entity should not find itself in a position to be viewed as having promoted or advanced religion.