OPINION LETTER

Dear Public Official:

      Greetings. Since you are in receipt of this letter, you are no doubt contemplating the adoption of "America’s Christian Heritage Week" in your state or locality. We at the National Legal Foundation applaud your efforts. We would also like to briefly address some issues that may arise as the idea of declaring "America’s Christian Heritage Week" is debated and eventually voted upon. This letter is intended for information purposes only, and should not be construed as legal advice. However, it constitutes the opinion of the National Legal Foundation.

      The National Legal Foundation is a public interest law firm which exists for the purpose of preserving our religious freedoms under the Constitution. We have successfully litigated many First Amendment cases, including Board of Education v. Mergens, 496 U.S. 226 (1990) before the United States Supreme Court. We have been engaged in constitutional litigation around the country since 1985.

      In this nation we enjoy a long and rich tradition of giving official and public recognition to our religious heritage. We have done so in a variety of ways including public proclamations, the establishment of official days of prayer, the celebration of Thanksgiving as a public holiday, and the display of religious sentiments on our currency and on numerous government buildings.

      To declare "America’s Christian Heritage Week" would therefore be in keeping with our traditions and customs, some of which date back to before we were a nation. It is no different, for constitutional purposes, than having "In God We Trust" displayed on our coins, or the words "under God" in our Pledge of Allegiance, both of which are done pursuant to official acts of our federal government.

      Unfortunately, there will always be those who will object to these practices and make the erroneous claim that they are unlawful. However, the Supreme Court has made it abundantly clear that these acknowledgements of our religious heritage are perfectly permissible under the Constitution.

      Courts have used several different tests over the years to judge the constitutionality of government actions that touch upon matters of religion. "America’s Christian Heritage Week" would be found lawful under any of these tests, which include (1) the famous "Lemon test" from the case of Lemon v. Kurtzman, 403 U.S. 602 (1971); (2) the "test from history," as set forth in the case of Marsh v. Chambers, 463 U.S. 783 (1983); (3) the "endorsement" test; (4) the "coercion" test; and (5) the "psycho-coercion" test.

      The Lemon test holds that an act of government, in order to be constitutional, must (1) be primarily secular in purpose; (2) neither advance nor inhibit religion; and (3) avoid excessive entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602 (1971). In the case of "America’s Christian Heritage Week," as with many similar practices, all three elements are easily satisfied. First, there is the secular purpose of educating the public about our nation’s history, a history in which Christianity has played an important role. Secondly, declaring "America’s Christian Heritage Week" does nothing to either inhibit or advance religion: the state is not endorsing Christianity merely by acknowledging its role in our history, nor is any citizen being coerced to profess a particular religious belief, nor is there any penalty for those of other persuasions. Finally, there is no excessive entanglement with religion, as proclaiming "America’s Christian Heritage Week" is merely an acknowledgement and nothing more.

      "America’s Christian Heritage Week" passes the "test from history" as well. In the case of Marsh v. Chambers, the Supreme Court upheld the practice of a Christian minister offering a prayer to begin each daily session of the Nebraska state legislature. The prayers were upheld on two grounds: first, legislative prayers have been practiced in this nation since before our Constitution; and second, such prayers were just one of many religious practices approved by our Founding Fathers. According to the Marsh Court, acts approved of and practiced by the Founders are presumptively constitutional.

      Under the endorsement test a court asks whether the government intends to communicate, and whether an imaginary "reasonable observer" would receive, a message of "endorsement" of a particular religion and/or an act of disapproval toward any other religion. Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concurring). Here again, declaring "America’s Christian Heritage Week" is no more a government endorsement of a particular religion than having "In God We Trust" inscribed on our currency.

      The coercion test is satisfied as well, as there is nothing coercive about acknowledging our nation’s Christian heritage. No citizen will, in any way, be compelled by this simple acknowledgement of our nation’s history to assent to a religious belief. Under this test, the absence of government coercion removes the danger of a constitutional violation. County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 662 (1989) (Kennedy, J. dissenting).

      Finally, the psycho-coercion test asks whether a government action exerts any psychological and/or social pressure on citizens to conform to a religious idea or practice, even in the absence of an explicit mandate. This test has most often been used in cases involving graduation ceremonies, where it has been feared that a captive audience of impressionable students will succumb to subtle pressures to acquiesce in a religious practice. Lee v. Weisman, 112 S. Ct. 2649, 2658 (1992). Here, however, there is no such danger. This simple acknowledgment of historical fact carries with it no pressure to conform to religious practice or to declare allegiance to any religious idea or institution.

      Our Thanksgiving holiday is a prime example of how government can encourage acknowledgment of religious faith without violating the Constitution or any of the tests the Supreme Court employs. Thanksgiving is a national holiday, supported by the federal government, and designed to acknowledge God’s blessings on our nation. Since before we were a nation, government has openly encouraged citizens to mark this occasion with expressions of thankfulness to God.

      In fact, many of our presidents have openly encouraged the nation to give thanks to God on this day. President Franklin Roosevelt went so far as to call for all citizens to engage in "a nationwide reading of the Holy Scriptures during the period from Thanksgiving Day to Christmas" so that as a nation "we may bear more earnest witness to our gratitude to Almighty  God." Presidential Proclamation No. 2629, 58 Stat. 1160.

      Furthermore, "America’s Christian Heritage Week" occurs during the same week as the Thanksgiving holiday. The week of Thanksgiving Day is the most fitting time of the year to acknowledge our Christian heritage, as it was the early Christian settlers of this country who
first established the practice of Thanksgiving Day. If we can lawfully continue their tradition of setting aside a day for giving thanks to God for His blessings, then we can also acknowledge the Christian legacy of faith and freedom these early Christian settlers have left to us.

      This and other examples listed below make it clear that declaring "America’s Christian Heritage Week" does not violate the Constitution. It is the kind of government action which is considered an appropriate and permissible act of acknowledgment of God, in keeping with our best traditions.

      Indeed, throughout our nation’s history, countless presidents, legislators, and other public officials have made public pronouncements acknowledging God, religious faith, and the religious foundations of our law and system of government. Many of our public buildings bear religious inscriptions and a number of government agencies have religious mottoes. The United States Code requires, by law, that every year our President declare a National Day of Prayer, and our currency bears our national motto: "In God We Trust."

      We are, as the Supreme Court has acknowledged, "a religious people whose institutions presuppose the existence of a supreme being." Zorach v. Clauson, 343 U.S. 306, 313 (1952). Consequently, we have publicly recognized the importance of religion in various ways throughout our history, examples of which include:

      It is clear, therefore, that our nation enjoys a long and unbroken history of publicly acknowledging our nation’s religious heritage. Some have challenged these practices, including displaying "In God We Trust" on our currency, but such efforts have failed. On three separate occasions, federal courts have upheld that practice as being constitutional. See Gaylor v. United States, 74 F.3d 216 (10th Cir. 1996); Aronow v. United States, 432 F.2d 242 (9th Cir. 1970); and O’Hair v. Blumenthal, 462 F. Supp. 19 (W.D. Tex. 1978). The examples offered above show that public affirmations of faith in God, and invocations of divine favor—including the Supreme Court opening its sessions with the words "God save this honorable Court"—are well within our constitutional traditions, and not the kind of practices the First Amendment was meant to forbid. Zorach, 343 U.S. at 313.

      Thus, "America’s Christian Heritage Week" is both perfectly lawful and in keeping with long-established tradition. It will serve to educate our citizens about the nation’s history, and to acknowledge the many ways in which the Christian faith has helped to "secure the blessings of liberty" we have so long enjoyed.

Sincerely,

THE NATIONAL LEGAL FOUNDATION

Steven W. Fitschen
President

 

 


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© 2006 by the National Legal Foundation & Minuteman Institute