|Legal Opinion: |
Text of Document: October 30. 1997
This is in response to the question you asked yesterday with respect to the propriety of a municipality donating money to a religious cause in return for “free” counseling services to police officers and firefighters. While municipalities may make charitable contributions under certain circumstances, see generally, T.C.A. Section 6-54-111, it is my opinion that the action in question is not permissible because it is likely a court would hold it violative of the Establishment Clause of the First Amendment. My conclusion is based on an examination of case law on the First Amendment, which contains both the Establishment Clause and the Free Exercise Clause. By reason of the due process clause of the 14th Amendment, the Establishment and Free Exercise Clauses are applicable to state and local governmental bodies. Wiley v. Franklin, 468 F. Supp. 133 (E.D.Tenn) modified on other grounds, 497 F.Supp.. 390 (E.D. Tenn. 1980).
First, the general rule, which has been enunciated in many cases dealing with the involvement of government in religious actions and causes, is premised on the following: The First Amendment provides in part that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." U.S. Constitution, Amendment I. Two clauses are involved, that is, the Establishment Clause and the Free Exercise Clause. The Establishment Clause forbids the establishment of a national religion and also forbids "preference among religious sects or denominations." Wallace v. Jaffree, 472 U.S. 38, 106, 105 S.Ct. 2479, 2515, 86 L.Ed.2d 29 (1985). In Lemon v. Kurtzman, 403 U.S. 602, 614, 91 S.Ct. 2105, 2122, 29 L.Ed.2d 745 (1971), the Court adopted a three-part test for examining Establishment Clause cases, stating:
First, the legislature must have adopted the law with a secular purpose. Second, the statute's principal or primary effect must be one that neither advances nor inhibits religion. Third, the statute must not result in an excessive entanglement of government with religion.
While this issue does not involve a statute, but a proposed municipal action, the analysis as to its constitutionality is the same: Religious counseling to firefighters and police officers reveals a strictly non-secular purpose, an advancement of the Christian faith, and the fostering of an excessive entanglement with religion. By making
a “donation” to the chaplain’s church, the city is "fostering an excessive entanglement" with a strong Christian message.
In addition, this type of "donation" by the city is also questionable in terms of the "public purpose" it promotes and may violate the requirement that public funds be spent to benefit all of the public and not just a portion of the public, and thus has only an incidental "public benefit."
Just as a government may not contribute financially to a non-secular school as addressed in the Lemon case, I do not believe a government may contribute to a church in return for “free” counseling.
In Wallace v. Jaffree, 472 U.S. 38, 57, n. 45, 105 S.Ct. 2479, 2490 (1985), the Supreme Court held that the Free Exercise Clause may establish an exemption from Establishment Clause prohibitions so long as the free exercise rights of those within the exemption would otherwise be violated. In addition, the exemption made should constitute a necessary and reasonable accommodation of the free exercise of religion. See, e.g., Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 107 S.Ct. 2862; and Walz v. Tax Commission of New York City, 397 U.S. 664 (1970).
The Free Exercise Clause prohibits Congress (or any state or local government) from limiting an individual's right to religious belief. Thus, it is possible that a narrowly-drawn religious-based defense or exception is possible as a reasonable accommodation of the free exercise of religion. The burden would be upon the proponent of the exception to demonstrate that the exception is narrowly tailored to assure the individual's right of free exercise rather than any interest of an organization. It is this analysis that I believe would allow a state correctional institute to hire and to use governmental funds to pay a prison chaplain - because incarcerated individuals must also be allowed a right to exercise their religious beliefs and have access to a person offering religious guidance or teachings, and obviously, this must be done within the prison grounds. See generally Inmates, Washington Co. Jail v. England, 516 F. Supp. 132 (E.D. Tenn. 1980), aff'd 659 F.2d 1081 (6th Cir. 1981).
Applying this same analysis to your question, it is axiomatic that police officers and firefighters are free to seek religious counseling or attend religious services whenever they are not on duty. Therefore, I believe that our original analysis of this question is correct. It would improper for a municipality to “donate” or indirectly pay for religious counseling services to city policemen or firefighters. In summary, while it is most likely permissible for a correctional institute to employ the services of a chaplain for counseling, the same premise would not be applicable to municipal funds being used to further religious counseling to police officers or firefighters.