Court Cases;

OLR Research Report

The Connecticut General Assembly


August 20, 1997 97-R-0969


FROM: Laura Jordan, Research Attorney

RE: Separation of Church and State

You asked what the law in Connecticut is concerning the separation of church and state.


The First Amendment to the U.S. Constitution contains two clauses concerning religious protection. The first intends to separate church and state by prohibiting governments from enacting laws respecting the establishment of religion. The second bars governments from enacting laws that prohibit the free exercise of religion. The First Amendment is applicable to states through the Fourteenth Amendment. The Connecticut Constitution contains similar clauses (Conn. Const. art. VII).

The distinction between the two clauses is that while the establishment clause acts as a curb on government action, the free exercise clause guarantees individuals the right to practice as they wish. The clauses, although related, are two different issues and therefore two bodies of case law have developed around them. Connecticut has not passed legislation concerning the establishment clause and its appellate courts have analyzed this issue under the federal constitution's provisions.

The U.S. Supreme Court has interpreted how these clauses apply to particular sets of facts and these decisions form the law on the separation of church and state in Connecticut. In general, the Court has interpreted the establishment clause to mean that government action cannot favor or burden a particular religion. The term “government” can mean many different things. For example, it can include a legislature, an administrative agency, a school board, and a teacher. Government action can include everything from a legislature passing a law to a teacher saying a prayer before a class. Government action is necessary before an establishment clause issue can be raised. Some government actions are clearly impermissible such as establishing an official church, coercing people to participate in a certain religion, punishing people for their beliefs, preferring a religion, or participating in a religion.

Other government action requires more analysis because its involvement is indirect. The Court's analysis of whether indirect government action is permissible generally depends on whether the action on its face favors or burdens a particular religion. If it does, the Court requires the government to put forth a compelling reason why the religion is singled out (Board of Education v. Grumet, 114 S.Ct. 2481 (1994)). If it cannot, the action will be prohibited or the law will be struck down. If the action has no reference to a particular religion, then the court applies a three-pronged analysis developed in Lemon v. Kurtzman (403 U.S. 602 (1971)). The three prongs require that the law (1) not have a secular purpose; (2) not have a primary effect that advances or inhibits religion; and (3) not produce excessive government entanglement with religion. If a government action does not meet these three requirements, then the Court is likely to strike it down as unconstitutional.

Although Lemon has been applied consistently in non-sect preference cases, the Court, especially Justice Scalia, has criticized and questioned the test sharply in the past few years. In addition, there is at least one case in which the Lemon test was not applied where it could have been. In Lee v. Weisman (505 U.S. 577 (1992)), the Court prohibited a Rhode Island school from including a prayer at its graduation ceremony. The Court weighed the two principles of governmental accommodation of free exercise of religion and limitations imposed by the establishment clause instead of applying the Lemon test.

Cases applying the Lemon test can be broken down into three broad categories: (1) cases dealing with financial aid given to non-public schools and religiously affiliated institutions, (2) cases dealing with religious activities in public schools, and (3) all other cases, which involve issues like holiday displays on state property and whether state legislatures may hire chaplains. Cases mentioned below are not exhaustive.


Permissible State Action— Where the Lemon Test Has Been Met

In general, laws favoring non-public schools exclusively will be struck down while laws benefiting non-public and public schools alike will be upheld. The following state actions concerning financial aid to non-public schools have been upheld by the Supreme Court:

1. offering tax deductions to parents regardless of whether their child attends a non- public or public school. (See Muller v. Allen, 463 U.S. 388 (1983));

2. reimbursing non-public schools for their expenses compiling state required data such as administering state standardized tests and school attendance records (see Committee for Public Education and Religious Liberty v. Regan, 444 U.S. 646 (1980));

3. paying for transportation of students to non-public schools as long as (1) the students live in the town where the school is located and (2) transportation is also offered to the town's students attending public school (see Everson v. Board of Education, 330 U.S. 1 (1947));

4. paying for student textbooks so long as public school text books are also paid for (see Board of Education v. Allen, 392 U.S. 236 (1968));

5. paying the cost of sending an interpreter for the deaf to a parochial school with funds that are available through a religiously neutral program for all handicapped school children (see Zobrest v. Catalina Foothills School District, 113 S.Ct. 2462 (1993)); and

6. sending public school teachers to parochial schools to teach remedial education under a Title I program that channels federal funds to local education agencies to provide remedial education, guidance, and job counseling to eligible students so long as safeguards are in place (see Agostini v. Felton U.S. , No. 96-552, June 23, 1997).

Impermissible State Action—Where Governments Have Failed the Lemon Test

In general, governments cannot directly support non-public schools, students, or their parents unless the same benefit is provided to the public school population. The following state actions have been struck down as unconstitutional under the establishment clause:

1. offering tax exemptions to parents of non-public school students where parents of public schools were ineligible for the exemptions (see Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756 (1973));

2. reimbursing parents for the cost of sending their children to private school (see Sloan v. Lemon, 413 U.S. 825 (1973));

3. reimbursing non-public schools for creating their own achievement tests (see Levitt v. Community for Public Education, 413 U.S. 472 (1973));

4. giving maintenance and repair grants to non-public schools (see, Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756 (1973));

5. paying for salaries and ancillary educational materials of non-public schools (see Lemon v. Kurtzman, 403 U.S. 602 (1971));

6. purchasing educational services from non-public schools (see Johnson v. Sanders, 403 U.S. 955 (1971)); and

7. lending non-public schools, students, or parents ancillary educational material (see Wolman v. Waller, 433 U.S. 229 (1977));

8. paying for field trips for non-public school children (see Wolman v. Waller, 433 U.S. 229 (1977)).


Permissible State Action; Where the Lemon Test Has Been Met

The Supreme Court has upheld the following government actions under the Lemon test:

1. offering a religiously-oriented student group use of public school facilities after school hours as long as the facility is also available to non-religious groups (see Widmar v. Vincenti, 454 U.S. 263 (1981));

2. using student activity fees to pay for a publication of a religious-oriented student group (see Rosenberger v. University of Virginia, U.S. , No. 94-329, June 29, 1995).

Impermissible State Action; Where governments failed the Lemon Test

The Supreme Court has struck down the following government actions as unconstitutional:

1. allowing prayer in school (see Engel v. Vitale, 370 U.S. 421 (1962); Abington v. Schempp, 374 U.S. 203 (1963); Wallace v. Jaffree, 472 U.S. 38 (1985));

2. dismissing school one hour early once a week to permit religious instruction (see McCollum v. Board of Education, 333 U.S. 203 (1948)); and

3. placing the ten commandments on the wall of a public school room (see Stone v. Graham, 449 U.S. 39 (1980)).


Holiday Displays

Governments may allow holiday display on their property so long as they do not endorse religion. In County of Allegheny v. A.C.L.U. (492 U.S. 573 (1989)), the Court upheld the right of the government to display a mix of secular and religious items (a Santa Claus and a nativity scene). The Court indicated it would not have upheld the action if only religious decorations were displayed.

Working on the Sabbath

The Court has struck down state laws requiring employers to allow their employees to take their Sabbath day off. States may still enact laws requiring employers to make reasonable accommodations of their employees' religious beliefs (see Estate of Thornton v. Caldor, 472 U.S. 703 (1985)).

Exemption from Anti-discrimination Laws

The federal government can exempt religious non-profit organizations from federal prohibitions against religious discrimination against employees. For example, a mosque can refuse to hire a grounds keeper who is not Muslim. The discrimination must be limited to the organizations non-profit activities (see Corporation of the Presiding Bishop of the church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987)).

Administering Federal Grants

The Supreme Court has permitted the federal government to authorize grants to public or non-profit private organizations, some of which are religiously affiliated, to carry out teen pregnancy prevention efforts (See Bowen v. Kendrick, 487 U.S. 589 (1988)).

State Legislatures Employing Chaplains

In Marsh v. Chambers (463 U.S. 783 (1983)), the Court held that a state legislature could hire a chaplain to lead the legislature in prayer before each session. The Court based its reasoning on the fact that there was a hundred year long tradition of prayer in legislatures. However, it has not applied this analysis to school prayer.