At an annual interfaith breakfast hosted on Tuesday, February 27, 2023, Mayor Eric Adams’ aide, chaplain Ingrid Lewis-Martin, declared ‘that the Adams administration ‘doesn’t believe’ in the separation of church and state, characterizing the mayor of New York City as ‘definitely one of the chosen’ as she introduced him.” Taking the stage, Mayor Adams responded, “‘Ingrid was so right. . . . Don’t tell me about no separation of church and state. State is the body. Church is the heart. You take the heart out of the body, the body dies.”[1]
Mayor Adams’ comments are mistaken, sort of. Anatomically, government has no heart. So there is that. But more importantly, under the First Amendment, government has no heart, but its people have many.
It is reasonable to view the separation of church and state doctrine as having been relaxed over the past decade.[2] The First Amendment, for many decades, forbade the use of taxpayer monies to fund religious exercise and institutions.[3] “As Thomas Jefferson . . . wrote, ‘“to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.”’[4] “And as James Madison . . . said, compelled taxpayer sponsorship of religion ‘is itself a signal of persecution,’ which ‘will destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion, has produced amongst its several sects.’”[5]
In 2002, however, the First Amendment was interpreted to allow government funds to flow to private religious schools if parents selected the benefiting schools through a school choice voucher program.[6] Last year, the First Amendment was interpreted to require such allowance where Maine had excluded, and, thereby discriminated against, religious schools in its school choice program.[7] In short, don’t exclude from government programs based on religious status or use.[8] Put another way, separation of church and state cannot justify religious discrimination.
A school football coach cannot lead his team in locker-room prayer, but he can pray privately after the game, even on the field, at least where students are not asked to participate.[9] Likewise, a school cannot fire a Muslim teacher for wearing a headscarf in the classroom or a Christian one for praying quietly over lunch in the cafeteria, but prayer cannot be made part of school activities.[10] The state cannot coerce religious observance, but it also cannot coerce nonobservance. In other words, the state shall not have religion, but its people may.
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[1] N.Y. Times, Adams, Discussing Faith, Dismisses Idea of Separating Church and State, Feb. 28, 2023.
[2] Carson v. Makin, 596 U.S. ___ (2022) (J. Sotomayor, dissenting).
[3] Carson v. Makin, 596 U.S. ___ (2022) (J. Sotomayor, dissenting).
[4] Carson v. Makin, 596 U.S. ___ (2022) (J. Breyer, dissenting).
[5] Carson v. Makin, 596 U.S. ___ (2022) (J. Breyer, dissenting).
[6] Carson v. Makin, 596 U.S. ___ (2022) (J. Sotomayor, dissenting), citing Zelman v. Simmon-Harris, 536 U.S. 639, 662 (2002).
[7] Carson v. Makin, 596 U.S. ___ (2022).
[8] Carson v. Makin, 596 U.S. ___ (2022) (“A ‘State’ need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.’”).
[9] Kennedy v. Bremerton School District, ___ U.S. ___ (2022).
[10] Kennedy v. Bremerton School District, ___ U.S. ___ (2022).
Attorney Lucas Newbill 