Church and State
(from Maine Townsman, October 2001)
by Douglas Rooks

Few parts of the federal Constitution have prompted as much debate, or provoked as much controversy, as the First Amendment's treatment of religion. In addition to the well-known guarantees of freedom of speech, assembly and of the press, the First Amendment has two things to say about religion: that "Congress shall make no law respecting an establishment of religion," and make no law "prohibiting the free exercise thereof."

In essence, these statements lay out what we call the "separation of church and state." Unlike Europe, where the established church was, in effect, a branch of government, in America churches were to be independent ("free exercise") but government was also supposed to refrain from promoting religion ("establishment"). While grammatically part of the same sentence, the two guarantees have separate meanings and legal traditions. The tension between them helps explain why municipal officials considering a holiday display or whether a group can use a public building, so often find themselves calling an attorney.

Maine is far from unique in the head-scratching going on, yet Maine people have not seen the contentiousness these issues have spawned elsewhere. In fact, there are few court cases raising church and state issues in Maine. This is not to say that the issues aren't raised frequently, just that they rarely end up in court.

The U.S. Supreme Court provides the guiding text. Winning high marks for clarity among Maine attorneys are the court's rulings on the use of public facilities by religious groups. Since it began promulgating its "open forum" doctrine a decade ago, the high court has clearly stated that if any non-governmental groups use public facilities, they must be offered on an equal basis to religious organizations. The Lamb's Chapel case of 1993 was the court's most explicit statement, upholding the showing of a religious film after hours in a public school building.

The court's most recent ruling came in the Good News Club case, decided in June. An evangelistic religious club in upstate New York could not be denied access to school facilities as long as other groups, such as Boy Scouts and 4-H clubs, were allowed to meet, a 6-3 majority ruled. The dissenters said the majority ignored evidence that the club's meetings resembled religious services.

To MMA attorney Richard Flewelling, Good News was a sound ruling setting down a clear standard, that "if a local government makes facilities available to any non-government group, it must make them available to all such groups." In theory, at least, he said, this would apply to anyone "from the Boy Scouts to the Ku Klux Klan." Making decisions based on the content of a group's idea, he said, doesn't lead to fair results. He pointed out that the city council of Berkeley, Calif. tried to deny access to the Boy Scouts based on the national organization's perceived anti-gay policies. "The open forum doctrine provides quite clear marching orders," he said.

David Soley of the Portland firm of Bernstein, Shur, who frequently represents municipal clients, agrees the open forum doctrine is clear, but is less convinced it's fair. "This is a case of the court emphasizing the 'free exercise' clause at the expense of the 'establishment' clause," he said.

Dorcas Gilpatrick, deputy director of the Maine Civil Liberties Union, said not all uses of the open forum concept are easy to grasp. When religious revivalists are meeting in Portland, "It's hard to explain to people why there should be banners flying over Congress Street. But that's what the court said we have to do."

Soley, who also serves on the Freeport Town Council, said the doctrine should work both ways. As a councilor, he can see how it might be tempting to ask churches to allow municipal groups to meet there: "After all, we have five or six churches that have plenty of room most nights." Yet church-state separation dictates - wisely, he believes - that towns not make use of churches, and Freeport voters will vote this November on spending $1.5 million for a community center instead.

Flewelling said the instance Soley raises - towns using church facilities - also deserves attention. As a temporary or emergency measure, meeting in a church would probably pass constitutional muster, he said, but that doing so on a permanent basis likely would not - though adding that there's little case law on the point.

If things are clear about meetings, they are a lot murkier about holiday displays, despite numerous Supreme Court rulings. Religious symbols such as crosses and crèches started being evicted from public property in the 1960s, yet the court has yet to give clear guidelines on what is acceptable.

The court has at times allowed religious elements that aren't predominant in such displays, producing a confused series of lower courts rulings. In perhaps the most notorious example, the high court ruled in County of Allegheny v. ACLU (1988) that a display featuring a menorah and a Christmas tree was constitutional, but that a display with a crèche alone was not.

Taken as a whole, court rulings have created an unfortunate message, David Soley believes: "Christmas trees and menorahs are OK, but crosses and crèches are not." The court's basic rationale is that Christmas and Easter are secular and commercial holidays as well as religious ones, and that the commercial symbols can be displayed on public property - though why menorahs should be "commercial" baffles him. The problem with this theory, he said, is that "we all know these holidays have religious roots, and profound religious meanings." Banning religious symbols has the effect of satisfying neither side - religious groups feel they are being discriminated against and that the court favors commercial over religious uses, while those who don't observe the holidays at all feel slighted by the public observances.

In Maine, inquires about holiday displays come up every fall, said Dorcas Gilpatrick said. Last year, a citizen objected when Lewiston said it would pay for lighting a display at a downtown cathedral. The city's rationale was that the cathedral was a prominent civic symbol, not just a religious one. The issue became moot, however, when Central Maine Power agreed to donate the electricity. When, several years ago, a small town post office in Maine mounted a crèche display, the issue was quietly resolved, and the display removed, she said.

Gilpatrick said she had "mixed feelings" about the rarity of complaints. "It very difficult in a small town to go against the grain. It's easy for us [at MCLU] because that's our job, but it's hard to do out there, where you can really be ostracized."

Soley said flat out that he thinks many communities don't properly deal with religious symbolism on public property.

Flewelling said there is "a great deal of confusion" on the issue of holiday displays. "I don't think the rulings are clear."

One carefully watched issue that may have to less to it than meets the eye is the Religious Land Use and Institutionalized Person Act signed into law by President Clinton last fall. On its face, the law preempts local planning and zoning authority by undermining the ability to zone for churches and other religious facilities. Maine doesn't have the kind of commercial-only zones where churches could be barred from street-front locations, as in the case that prompted the law, but it does have ordinances prohibiting churches in some residential areas. Specifically, the law would apply "strict scrutiny" to any zoning rules affecting churches, and require a "compelling government interest" to justify them. This is a standard difficult if not impossible to meet where zoning is concerned.

Richard Flewelling considers this an odd piece of legislation, and confesses to "a bias on this issue." He questions any such preemption of local control, asking "What business is this of Congress in the first place?" He adds, "the bill was co-sponsored by Orrin Hatch and Ted Kennedy" - respectively, among of the Senate's most conservative and most liberal members - "and that ought to tell you something." Instead of allowing churches equal protection under zoning statutes, he said, this one favors them, creating a wide loophole in most ordinances.

He's not convinced, however, that RLUIPA will survive for long. It was passed mostly in response to a previous Supreme Court decision upholding zoning decisions in such cases, and he thinks it likely the court will strike down the law. "They've been pretty consistent in this area," Flewelling said. "They did the same thing when Congress was trying to ban guns within a certain distance of schools."

School prayer has been a hot-button issue ever since the Supreme Court handed down its 1962 decision barring organized prayer in classrooms. Critics of the court's rulings accuse it of inconsistency, Flewelling said, asking how the court can uphold the use of chaplains in Congress and the motto "In God We Trust" on coins, on one hand, while on the other striking down prayers used at graduation exercises and football games.

The difference, he said, is that students are "impressionable people" who might not be able to distinguish between a ceremonial use and indoctrination. In the congressional example, it's clearly adults who are affected. So when he's asked whether it's OK to begin a town meeting with a prayer or invocation, he says "It's probably permissible," even though "this may come as a shock to some people."

David Lourie, a former Portland city attorney who has also argued cases for the MCLU, said the prayer rulings can involve tricky distinctions. The Supreme Court recently upheld some instances of student-led prayer in school. At a graduation ceremony, the court ruled prayer acceptable "if it was truly coming from the students, rather than being suggested or instigated by teachers or the administration." In practice, he said, making such distinctions will be difficult - yet that's what the court requires.

The tuitioning and transporting of students to private religious schools comes up more often than school prayer in Maine, Lourie said, because the state has so many communities that tuition students elsewhere. When he was corporation counsel in Portland, he noticed that the city had an inconsistent policy concerning school busing. Though students can attend any high school in the city, bus transportation is provided only if the student lives farther than a half-mile from the nearest high school. In the case of students attending religious schools, however, no distance requirement was applied. "We were applying a more liberal standard for those attending religious schools than for other students," he said.

Eventually, the policy was made consistent, but only, he believes, because a city councilor made a speech on the subject. "I'd never seen them act without an actual complaint before them, and not just my opinion."

To find a classic example of the entanglement of church and state, one does not have to go farther than the Penobscot County town of Stetson (pop. 981). Since 1843, the town has used a building known as the Stetson Union Church, which has hosted religious services during almost all that time. The town has generally been thought to own the building - which has white clapboards, a steeple, pews, and other classic elements of a church - but it did not have a deed until it took the building and eight acres by eminent domain in 1996. It had previously moved the building back from the road onto a new foundation after an architect warned the steeple might collapse. Although the church building doesn't house the town offices, town meetings are held there, and the building is now handicapped accessible and has a full basement.

Carol Laplant, the town administrative assistant, said there are "differing schools of thought" on the building. At times, townspeople have advocated "tearing out the pews, and possibly moving in pool tables," to give the town building a less overtly religious look. In 1981, a new selectman nervous about the name suggested changing it to the Stetson Meeting House, and it is so listed on the National Register of Historic Places. Observes Laplant, "But if you look in the dictionary, a meeting house is defined as a church."

When a local citizen contacted the MCLU about the situation, David Lourie looked into it and advised the town that the use of a public building for religious services was likely unconstitutional. The town then asked MMA for its opinion, and the MMA attorney concurred with MCLU. Yet no formal action was ever taken, Lourie said, because the citizen declined to participate in a lawsuit. "I can have the best argument in the world," he said, "but if I don't have a plaintiff, I don't have a case."

The town does appear to be employing the "open forum" doctrine. Other groups are given equal access, and in the past, other religious groups have met there too. Though the pews remain in places, following Sunday services the crosses and other religious symbols are placed in a separate closet and the other groups are free to decorate, too.

Nor is the situation without its ironies. The current church group is planning to leave soon, and intends to build another Stetson Union Church. Not so fast, say others in town. Even though the official name is now the Stetson Meeting House, there are some who believe the name "union church" belongs to the building, not the group. Laplant is careful not to take sides, referring simply to "the new ruckus in town."

Richard Flewelling said there are other situations that might give rise to "establishment" complaints, such as a town seal in the St. John Valley featuring a cross and a Latin motto reading, roughly, "Our savior is our guide." In the context of the time, this was unexceptional; today, it might raise eyebrows, although, in this town, no one has complained.

Flewelling said the tension between the establishment and free exercise clauses essentially guarantee that the church-state issue "will be the source of endless discussion and dispute," nor "will there ever be a time when there will be a consensus broad enough to settle the issue." He said that inquiries from towns to MMA form a "relatively insignificant percentage" of those he fields, something that doesn't surprise him. "Mainers tend not to be extremists, one way or the other." Yet he welcomes such questions. "They're always interesting, and I enjoy them."

The main point to keep in mind, he said, is "Do not discriminate for or against a religious use. Don't single it out for special treatment. If we draw no distinctions based on the identity of a group or individual, we can keep our nose clean."