Legal Opinions

 July 6, 2017

VIA EMAIL

Katricia G. Pierson, 
President East Central University 
110 East 14th St. Ada, OK 74820

 

                        Re:      Removal of Bibles, altar and steeple cross from Kathryn P. Boswell Memorial Chapel

 

Dear President Pierson:      

Liberty Counsel has been contacted by numerous concerned residents of Ada, Oklahoma, and others from across the state, concerning the precipitous removal of Bibles, the altar, and other religious elements from the Kathryn P. Boswell Memorial Chapel (“Chapel”) on the campus of East Central University (“ECU” or “the University”) after receipt of a demand letter from Americans United for Separation of Church and State (“AU”). AU has also demanded that the University remove the cross from atop the steeple of the Chapel. 

I write to urge ECU to refrain from acting precipitously at the behest of AU. The items removed from the Chapel should be returned, and under no circumstances should the cross be removed from the steeple. It is unnecessary to remove religious elements from a chapel provided as an accommodation to students, in order to comply with the U.S. and Oklahoma constitutions. I write also to offer Liberty Counsel’s pro bono legal representation to ECU, should a legal challenge actually materialize.

By way of brief introduction, Liberty Counsel is a national public interest litigation, education, and public policy organization specializing in constitutional law, particularly free speech, religious freedom and church-state matters.  We have offices in Florida, Virginia, Washington, D.C., and we have hundreds of affiliate attorneys across the nation, including Oklahoma.  

Liberty Counsel disagrees strongly with the legal conclusions and demands of AU. It is unnecessary to engage in religious cleansing of public buildings, in order to pass constitutional muster. I understand that the Chapel is simply an accommodation of the religious free exercise of ECU students; that students meet there regularly for religious worship; and that no student – Christian or otherwise – has ever been denied the opportunity to use the Chapel for a meeting. Many students have actually been married in the Chapel, over its 60+ year history, since the funds for its construction were reportedly donated by the husband of the late Kathryn P. Boswell.

Based on this understanding of the facts, the Chapel is constitutional under Oklahoma and U.S. law. Article 2, § 5 of the Oklahoma Constitution states that “No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.”

This does not mean that a chapel may not be situated on the grounds of a public university. As stated by the Oklahoma Supreme Court, “This Court has long recognized the distinction between institutions with some religious influence and sectarian institutions noting that ‘[i]t is not the exposure to religious influence that is to be avoided; it is the adoption of sectarian principles or the monetary support of one or several or all sects the state must not do’.” Burkhardt v. City of Enid, 1989 OK 45, 771 P.2d 608, 612– 13, quoting Murrow Indian Orphans Home v. Childers, 197 Okl. 249, 250, 171 P.2d 600, 602 (1946). 

Apropos to the situation here, the Oklahoma Supreme Court has also found that the construction of a memorial chapel on the grounds of a state-owned orphans home, which was paid for by gift to the home from the trustees of a private fund created by a will, where the chapel was to be used for assembly purposes, including nonsectarian, nondenominational religious worship, did not violate the First Amendment to the U.S. Constitution with respect to any “establishment of religion,” nor did it violate Art. 2, § 5 of the Oklahoma Constitution.  State for Use And Benefit of Town of Pryor v. Williamson, Okla., 347 P.2d 204 (1959).

It is a well settled principle and philosophy of our Government that we should preserve separation of church and state, but that does not mean to compel or require separation from God. That would be directly contrary to cardinal precepts of the founding and preservation of our government, for it is well settled and understood that ours is a Christian Nation, holding the Almighty God in dutiful reverence. It is so noted in our Declaration of Independence and in the Constitution of every State of the Union. Since George Washington's first presidential proclamation of Thanksgiving Day each such annual proclamation reiterates the principles that we are such a Christian Nation. Our State Senate and House of Representatives spend public funds maintaining on duty a Chaplain, though this expenditure is not made in aid of any sect or denomination. The same is true as to each branch of our National Congress. State paid Chaplains are employed at the State Penitentiary at McAlester, and the State Reformatory at Granite.

In the early days of our National existence the Continental Congress allowed, and General George Washington ordered a Chaplain for each regiment of our troops, and that practice of use of Chaplains has continued in all branches of our armed forces through the years. At West Point our National Government maintains a chapel and cadets are required to attend it. Our State maintains chapels at State Institutions such as the Griffin Memorial State Hospital at Norman, and the State Penitentiary at McAlester among others. A non-sectarian chapel was constructed at ‘Girls' Town,’ a State Institution, from funds raised by a state bond issue. At public expenditure we engrave on our coins, ‘In God We Trust’ and print the same on currency. Our National Motto adopted by joint resolution of Congress is ‘In God We Trust.’ Our National Anthem closes with these words ‘In God is our Trust.’ Then why not maintain chaplains and, in appropriate places, chapels available for use in the worship of God by those who desire to do so?

Id. at 207.

The Court continued:

When we consider the language used in our Declaration of Independence and in our National Constitution, and in our Constitution of Oklahoma, wherein those documents recognize the existence of God, and that we are a Christian Nation and a Christian State, and when we note the encouragement therein given to the principle that we should recognize our dependence on God, and should promote worship of God, it is too difficult to see any constitutional provision indicating the slightest intention to prohibit the maintenance of chapels as they are maintained throughout our land . . .

The plaintiffs cite no authority which demonstrates to this court that the construction of this chapel should be stopped or its use barred by injunction, and their argument for such relief is not convincing.

Id. at 208.

Thus, Liberty Counsel believes that a privately-sponsored and erected memorial Chapel on University grounds does not offend the Oklahoma Constitution. Moreover, under federal law, the Chapel is also constitutional, as an accommodation of Christian religious worship, and as a historic structure. As the U.S. Supreme Court in County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 594 (1989) (quoting Lynch v.Donnelly,465U.S. 668, 687 (1984)) stated: 

 

We are unable to perceive the Archbishop of Canterbury, the Vicar of Rome, or other powerful religious leaders behind every public acknowledgment of the religious heritage long officially recognized by the three constitutional branches of government. Any notion that these symbols pose a real danger of establishment of a state church is far-fetched indeed. 

Lynch v. Donnelly, 465 U.S. 668, 685-86, (1984) (emphasis added). 

Other courts have upheld the public display of Christian crosses, such as the Fifth Circuit in Murray v. City of Austin, Tex., 947 F.2d 147 (5th Cir. 1991).Murray upheld the inclusion of a Christian cross in the insignia of the City of Austin, Texas. The court stated, 

But, needless to say, our case is not an extreme one. To the contrary, in considering the Establishment Clause challenge to Austin's insignia, we must recognize the reason for the cross originally being in the coat of arms; that Austin did not have an improper purpose in adopting the insignia; its long and unchallenged use; its non-proselytizing effect; that in its context, it does not endorse religion in any true or meaningful sense of the word “endorsement”; and that requiring the City to remove all displays of the insignia, arguably evinces not neutrality, but instead hostility, to religion.

In sum, we hold that the insignia passes constitutional muster, whether under Lemon, because its principal or primary effect is not one that either advances or inhibits religion, or under the Supreme Court's more recent pronouncements, including Marsh, Lynch, and County of Allegheny. 

Murray v. City of Austin, Tex., 947 F.2d 147, 158 (5th Cir. 1991) (emphasis added).

The Establishment Clause does not mean that every government building must be sanitized of anything religious, or that the government cannot provide a reasonable accommodation for sincerely-held religious beliefs – even of the faith of a majority of students at the University - but rather that government must not endorse a specific religion, or endorse religion over non-religion. In order to endorse religion, the symbol in question must have been incorporated so as to serve a governmental religious purpose, as opposed to a legitimate governmental interest. 

I understand that the Chapel was not erected at government behest, or because ECU sought to endorse Christianity. The Chapel was proposed by private individuals, and erected with private funds. ECU permitted its construction as an accommodation to Christian students far from home, who may wish to avail themselves of a building for religious worship. If AU is correct in its assertions about the Bibles, altar, and cross atop the steeple, then ECU would also be required to break any stained glass windows, and cut down the steeple itself, as such are also obviously Christian religious elements. AU is not, however, and ECU should not.

Based on our understanding of the facts, Liberty Counsel stands ready to defend ECU pro bono against any lawsuit that may occur if ECU restores the Bibles and the altar, and retains the cross on top of the steeple. Should you wish clarification on this offer, or wish to obtain any further information about Liberty Counsel’s experience in these matters, please do not hesitate to contact me by calling 407-671-1776.