May 4, 1981
Subject:
Constitution, First Amendment, State Aid and Religion.
Requested By:
W. W. Speicht Pitt County Attorney
Question:
May Pitt County Memorial Hospital hire a chaplain for the hospital using operating revenue for expenses, a portion of which revenue is obtained from state appropriations?
Conclusion:
No.
Pitt County Memorial Hospital, Inc. is affiliated with East Carolina University School of Medicine and is used as a teaching facility and state appropriations provide a portion of operating funds. The Board of Trustees is nominated and appointed jointly by the county commissioners and the University of North Carolina.
The First Amendment of the United States Constitution provides in part that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The Supreme Court has developed a three-prong test to determine if legislation or governmental action violates the Establishment Clause: 1) the purpose must be secular, 2) the primary effect must neither advance nor inhibit religion, and 3) it must not foster excessive entanglement of government and religion. See Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971). In the Lemon case and subsequent decisions the Court applied the test to various state schemes providing aid to non-public schools with religious affiliations. See Hunt v. McNair, 413 U.S. 734, 93 S. Ct. 2868, 37 L. Ed. 2d 923 (1973) and Rosemer v. Board of Public Works of Maryland, 426 U.S. 736, 96 S.Ct. 2337, 49 L.Ed.2d 179 (1976).
Courts have used the test in other situations where government action or aid has had religious connotations. In the case of Allen v. Morton, 495 F.2d 65, 161 U.S. App. D.C. 239 (1973), it was determined that the federal government could provide funds for a city Christmas pageant held on federal parkland so long as no government officials participated in the planning. Such participation would be "excessive entanglement" and unconstitutional despite a finding that the purpose of the pageant was promotion of tourism and therefore secular. In Anderson v. Salt Lake City, 475 F.2d 29 (1973) the court found that allowing placement of a monolith inscribed with the Ten Commandments, among other symbols, on courthouse grounds was not unconstitutional. The court cited the passive nature of the monument along with finding that the purpose was secular. Similarly, the court upheld illumination in the form of the cross at a courthouse as being for the purpose of seasonal decoration to benefit downtown business, Paul v. Dade County, 202 So.2d 833 (1967). Conversely, it was found that a city could not permit erection of a cross in a public park even though ostensibly for a war memorial and to attract business, Lowe v. City of Eugene, 254 Or.518, 463 P.2d 360 (1969). The City of Denver was enjoined from erecting and maintaining a nativity scene in a pageant which also included Santa Claus and other nonreligious symbols, Citizens Concerned for Separation of Church and State v. Denver, 481 F. Supp. 522 (1979), appeal dismissed and judgment vacated for lack of jurisdiction, 628 F.2d 1289 (1980). See also Hall v. Bradshaw, 630 F.2d 1018 (1980) in which the court found use of a "Motorists’ Prayer" on maps published by the North Carolina Department of Transportation was unconstitutional.
There remain areas where government involvement with religion is relatively unchallenged. At present it seems agreed that the government may provide chaplains in prisons and for the military. Prisoners and military personnel have been removed from civilian society by the state and are cut off from normal opportunities to practice religion. Therefore, under the Free Exercise Clause, the government has an obligation to provide a chaplain in order that such people may practice their religious beliefs. See Justice Brennan’s concurring opinion in Abington v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L. Ed. 2d 844 (1963), see also Theriault v. Silber, 547 F. 2d 1279 (1977) and Horn v. California, 321 F.Supp. 961 (1968). The voluntary nature of participation by adult prisoners of military personnel is also cited to support provision of military and prison chaplains.
There are no decisions which deal directly with employment of a hospital chaplain; consequently, any analysis must be based upon general principles provided by case law and upon any facts particular to the question presented here. Use of the three-prong test under the Establishment Clause of the Constitution would appear most applicable. While hospital patients are removed from the general community and would voluntarily elect to see a chaplain, a hospital is not the type of closed community in which people are constrained to live by the government as prisons and military bases. Therefore no corresponding obligation to provide a chaplain exists under the Free Exercise Clause.
A recent federal court decision dealt with a comparable issue; Chambers v. Marsh, CV 79-L-294
(D.C. Neb. 1980), held that state funds could not be expended for the salary of a chaplain for the Nebraska Legislature. The court, using the principles of Lemon v. Kurtzman, found that the use of a prayer to begin a legislative session may have a secular purpose and neither advance nor inhibit religion, but the actual use of state funds for a chaplain’s salary would constitute excessive entanglement.
In applying the three-prong test to question here, it is necessary first to analyze the purpose of providing a hospital chaplain. The scope of a chaplain’s duties, although it may include nonreligious services such as counseling or administration, appears to be essentially religious. Religious means to promote a secular end are not constitutionally permissible. See Hall v. Bradshaw, supra.
Secondly, the primary effect of hiring a hospital chaplain appears to advance religion, especially a particular religion if the chaplain is affiliated with a denomination or faith. The court in Chambers stated:
The direct and immediate religious effect of Nebraska’s funding a chaplain’s salary is in securing
a firm and continuing relationship with a particular cleric of one denomination to the virtual
exclusion of all others for at least the several-month session of the legislature. That does not
mean that no clergyperson of other religious persuasions are afforded an opportunity to offer
opening prayers. Over the years the chaplain has asked others to fill in for him when he is absent.
From time to time various senators have asked whether their own clergypersons might be invited,
and in those instances the chaplain has always honored the requests, including one of the Jewish
faith. Nevertheless, the chaplain for fifteen years has been of one faith, of one denomination, of
one set of religious beliefs, embodied in one person. Use of public money to finance that
arrangement — and to finance the printing for distribution to members and non-members of the
resulting prayers — has resulted in the placing of "the power, prestige and financial support of
government . . . behind a particular religious belief" or set of beliefs, which the Establishment
Clause is designed to prevent. Engel v. Vitale, 370 U.S. 421, 431 (1963).
As for the question of excessive entanglement, the court in Chambers found such entanglement
because of direct governmental support of religion in the form of paying a chaplain. State
appropriations comprise a part of the funds used by Pitt County Memorial Hospital for operation;
use of such money to aid religion would constitute excessive entanglement under the Chambers decision.
Upon applying the test of Lemon v. Kurtzman and other decisions, it is our opinion that
employing a hospital chaplain using funds obtained in part through state appropriations would
have an essentially religious purpose, have a primary effect of advancing religion, and foster
excessive entanglement of government and religion. Under such circumstances the Establishment
Clause of the First Amendment would be violated.
Rufus L. Edmisten
Attorney General
Sarah C. Young
Assistant Attorney General