Church-State Relations

AJC believes that the First Amendment's twin guarantees of the free exercise of religion and the separation of church and state work together to ensure that Americans of all faiths and of no faith can live as their consciences dictate. Respecting these constitutional mandates is also the surest way of avoiding division in our pluralistic society.

AJC seeks to protect our cherished "first freedoms" in the courts and through legislative and grassroots advocacy. Ever since filing its first amicus ("friend of the court") brief in 1923 supporting the rights of Catholic parents to send their children to parochial schools, AJC has continued to be involved in landmark religious liberty and church-state debates. During the 1960s and 1970s, AJC played a key role in the debates on prayer in public school and on aid to religious schools that culminated in keystone cases in those areas.

AJC closely monitors proposed legislation related to First Amendment issues at both the national and state levels. Through its Washington legislative affairs office and regional offices across the nation, the organization engages in direct and grassroots advocacy and education of Congressional staff and members of the Obama administration. In addition to work at the federal level, the regional offices serve as a network to monitor and “raise their voices” on state initiatives and referenda that threaten the separation of church and state.

 

Faith-Based Initiatives

The faith-based initiative (or “charitable choice”) is a policy construct that permits religious organizations to receive public funds to provide social services. While there is a long and honorable history of taxpayer funds being used to support faith-based institutions in their provision of secular social services, any such funding must be accompanied, in AJC’s view, by adequate church-state safeguards and protection against taxpayer-funded discrimination. Among other things, this means that public grants or contracts should not be used to fund “pervasively religious organizations” whose religious mission is inextricably intertwined with the provision of services. Moreover, while AJC believes that the ability of religious organizations to make employment decisions on the basis of religion is an important element of religious free exercise when those institutions utilize private funds, we oppose that aspect of charitable choice which allows faith-based grantees to discriminate in hiring for positions funded with taxpayers’ dollars. Further, AJC is concerned that, without proper safeguards, social service beneficiaries may be tacitly pressured to participate in religious activities, notwithstanding the weak beneficiary safeguards included in the initiative. Finally, in the absence of appropriate safeguards, intrusive government regulation and oversight will threaten the autonomy of religious organizations.

In coordination with the Coalition Against Religious Discrimination, AJC has urged the Bush and Obama administrations to implement reforms to the “faith-based initiative” (otherwise known as “charitable choice”) through administrative action. AJC also works with coalition partners in deterring adoption or renewal of charitable choice provisions in federal programs as they come up for reauthorization by Congress.

In February 2009, following his inauguration, President Obama announced the creation of the White House Office of Faith-Based and Neighborhood Partnerships as a successor to the similarly named office established by President Bush, as well as the creation of an advisory council consisting of religious and secular leaders. While the White House reiterated its commitment to church-state separation, many of the specifics of implementation were left unresolved. In particular, once in office, the president did not restate a promise made during the 2008 campaign not to allow hiring discrimination in government-funded programs run by faith-based organizations.

On November 17, 2010, President Obama signed a long-awaited executive order implementing consensus recommendations of the above-referenced advisory council for changes to the Bush Faith Based Initiative. The changes were a marked improvement over the Bush-era regulations, allowing the government to partner with an essential part of civil society to help meet the needs of those most at-risk in a fashion that both provides greater clarity as to the ground rules and that is in accord with crucial constitutional principles. The Executive Order did not, however, reach the most controversial area in the field—the question of whether beneficiaries of federal grants should be allowed to discriminate in employment on the basis of religion.

Against this background, AJC joined with coalition partners in writing to President Obama to urge that he honor the seventieth anniversary of Executive Order 8802—the first executive order prohibiting government contractors from engaging in employment discrimination, adopted in 1941—by rescinding the language in Executive Order 13279 that permits religious organizations that contract with the government to discriminate against federally funded employees on the basis of religion. AJC later joined with the coalition in sending a letter to President Obama expressing concern about comments made the President at a July 2011 town hall meeting in Maryland that suggested that the administration “may now support allowing religious organizations to hire and fire based upon religion in federally funded positions,” and asking for the President to clarify his position on the issue.

Finally, AJC has worked with coalition partners in writing to various Cabinet departments asking that they advise as to the methodology by which they determine in a specific case whether religious organizations may discriminate when hiring for government-funded positions. This inquiry was made in response to repeated statements by government officials that this determination is made on a “case-by-case” basis, but without any explanation of the standard the Administration applies or the process it uses for analysis.

AJC will continue to work to strengthen and build upon reforms already undertaken with respect to the faith-based initiative, as well as monitor and advocate in Congress, so as to assure that the faith-based initiative avoids violation of church-state separation or government-funded discrimination even as it also avoids undue encroachment on the autonomy of religious organizations.

 

Public Funding of Religious Schools

AJC continues to work to forestall school-voucher programs and other schemes intended to direct public funds to religious and other private schools on the grounds that to do so would undermine the public school system, fail to improve education, undermine civil rights protections, and—with respect to religious schools—create excessive entanglement between government and religion.  The major congressional initiative in this area, opposed by AJC, has for several years been the D.C. vouchers pilot program first adopted by Congress in 2003.

AJC also follows and advocates on these issues at the regional level. Thus, AJC’s three Florida offices – Miami/Broward, Palm Beach and West Coast Florida – have followed statewide issues relating to the separation of church and state, with a specific focus on school vouchers, in addition to prayer in school bills (see below) and proposed anti-Sharia laws (see below). These offices were also very active in opposing the repeal of the Blaine Amendment, which bars state financial support of any religious denomination or institution.

AJC filed an amicus brief with the U.S. Supreme Court in the case of Zelman v. Simmon-Harris, a challenge to Cleveland's school voucher program. In a 5-4 decision, the Court in 2002 upheld the program on the ground that parents exercised independent choice in selecting religious schools for their children. AJC continues to monitor cases involving vouchers with a view to determining whether other programs meet the criteria established by the Zelman Court in upholding the Cleveland program. AJC has served as "of counsel" to the plaintiffs in lawsuits challenging voucher programs in Colorado and Florida.

In its most recent high court filing involving these issues, AJC submitted a friend-of-the-court brief in Arizona Christian School Tuition Organization v. Winn, a Supreme Court case involving a state law allowing taxpayers a credit against taxes due for donations made to not-for-profit organizations that, in turn, offer scholarship assistance to students attending private and religious schools. The case turned on the key issue of whether taxpayers had the standing (legal right) to challenge the program as an unconstitutional violation of the Establishment Clause. The Court rejected AJC’s position that taxpayers did have such standing, holding that taxpayers had standing only to challenge actual expenditures by government, not decisions by government to refrain from taxation.

 

Public Display of Religious Symbols

In 2003, AJC joined in a brief with the Eleventh Circuit Court of Appeals in Glassroth v. Moore, opposing a granite monument displaying the Ten Commandments placed by Alabama's Chief Justice Roy Moore in the rotunda of the State Judicial Building. In the brief, AJC argued that the monument violated the Establishment Clause of the First Amendment to the Constitution in that it offended the freedom of conscience of the non-religious and those outside the Judeo-Christian tradition, as well as sent a message of exclusion to many Jews and Christians who do not adhere to the particular version of the Ten Commandments depicted in the monument.

In December 2004 and January 2005, AJC filed amicus briefs with the U.S. Supreme Court in Van Orden v. Perry, opposing the display of the Ten Commandments on the grounds of the state capitol in Texas, and McCreary County v. American Civil Liberties Union of Kentucky, opposing their display in courthouses. AJC expressed its opposition to the public display of the Ten Commandments in these briefs, especially where citizens of many faiths and of no faith convene daily to seek justice, an audience for their concerns, and services from their government.

Read AJC's briefs opposing the public display of the Ten Commandments:

 

Accommodation of Religious Practices and Beliefs

In the face of a split and gridlocked 112th Congress, AJC—as coordinator for the coalition formed to support the Workplace Religious Freedom Act (WRFA), legislation that would protect the rights of employees to practice their religion without the fear of losing their jobs or being passed over for promotion—will to seek opportunities to move the initiative forward as the 113th Congress convenes in January 2013.

Title VII of the Civil Rights Act of 1964 requires that employers reasonably accommodate their employees’ religious practices, unless doing so would cause undue hardship. Unfortunately, the courts have read this requirement in a fashion that vitiates the protection Congress intended to afford against religious discrimination, including interpreting anything more then a de minimis expense or difficulty as an “undue hardship.” WRFA would ensure that Title VII is interpreted to provide the protection against religious discrimination that Congress intended by clarifying that the expense or difficulty must be significant in order to be considered an "undue hardship." There are two versions of WRFA that have been introduced in recent Congresses; one would apply the more protective standard for religious accommodation to religious practice generally, the other would limit the more protective standard to cases involving holy time, and dress and grooming requirements.

In a related matter, AJC has joined with a broad range of faith and civil rights organizations in a letter to the Equal Employment Opportunity Commission urging that the EEOC take steps to clarify that segregation of workers based on their religion (often associated with an employer’s claim that an employee’s religiously required dress or grooming does not present the right “image”) is a violation of Title VII of the Civil Rights Act of 1964.

At the regional level, AJC participated in mapping out legal strategies to defeat a proposed referendum banning circumcision in the City of San Francisco. The proposal was ruled off the ballot by a judge who found that state law preempted municipal regulation of circumcision.

In the courts, AJC filed a friend-of-the-court brief in the U.S. Supreme Court jointly with the Union for Reform Judaism in Hosanna Tabor v. EEOC, an employment discrimination case that tested the scope of a religious institution’s discretion to hire and fire personnel whose duties include spreading religious faith. The brief urged adoption of a test based on a holistic evaluation of the employee’s duties, rejecting the purely quantitative approach urged by the employer, or the “because we said so” approach of the church employer. It added that while religious institutions enjoyed broad constitutional protection in making key employment decisions, that autonomy did not extend to retaliation against employees who filed complaints alleging employment discrimination. AJC met with the Solicitor General to explain what the religious liberty community's redlines were and to urge the Justice Department to recognize the existence of the ministerial exemption. The Department did not accept AJC’s advice, and were sharply criticized by the unanimous court on that point. In early 2012, AJC welcomed the Supreme Court decision to affirm the ministerial exception to employment discrimination laws.

Similarly, as part of its mission to defend the religious freedoms of all Americans, and of Jews in particular, AJC has supported legislation requiring that generally applicable laws not substantially burden a person’s exercise of religion unless the government can show that the law is in furtherance of a compelling interest and is the least restrictive means of furthering that interest. Federal legislation to that effect, the Religious Freedom Restoration Act, 42 U.S.C. §2000bb-1 (“RFRA”), passed by Congress in 1993, following the 1990 decision of the U.S. Supreme Court in Employment Division v. Smith, in which the Court held that generally applicable laws may be applied to religious exercise, regardless of whether the government demonstrates a compelling interest for its rule. After RFRA was enacted, there were a series of cases challenging its constitutionality, including City of Boerne v. Flores, where the Supreme Court ruled that Congress had exceeded its authority in applying RFRA to the states. RFRA remains binding at the federal level as an exercise of Congress’ plenary authority over the federal government.

Following the decision in Boerne, AJC was instrumental in securing passage of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), a federal bill that protects religious groups from discriminatory land use laws that encroach on the free exercise of their faiths, and secures the religious liberties of institutionalized persons. AJC has maintained a consistent campaign against unjustly restrictive local zoning policies that prevent the establishment of religious assemblies and houses of worship in residential areas or otherwise make it impossible for religious groups to practice their faiths. Likewise, AJC believes that legislative action to accommodate the religious exercise rights of prisoners is not only constitutional, but commendable. AJC The act applies to programs or activities that receive federal financial assistance or when "the substantial burden affects, or removal of that burden would affect ... commerce ... among the several states."

Since RLUIPA’s enactment, AJC has joined coalitional briefs in support of the statute's constitutionality in cases across the country, in both the institutionalized persons and land use contexts. Thus, AJC filed an amicus brief with the U.S. Supreme Court in the case of Cutter v. Wilkinson in support of RLUIPA's constitutionality, together with a diverse coalition of religious and civil liberties organizations. We asserted that RLUIPA's purpose - accommodation of the free exercise of religion - is secular, and that RLUIPA does not impermissibly advance religion or entangle the government in religious practices, and is not an endorsement of religion, but rather an endorsement of the value and importance of the basic constitutional rights found in the First Amendment.

Consistent with this dedication to protecting members of all faiths from undue encroachment by the state, AJC has opposed anti-Sharia laws as an unconstitutional singling out of an unpopular religion for condemnation and disparate treatment.