|The Constitutional Principle: Separation of Church and State|
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|Please note that we have excerpted only those sections dealing with religion||
We, the people of Wisconsin, grateful to Almighty God for our freedom, in order to secure its blessings, form a more perfect government, insure domestic tranquillity and promote the general welfare, do establish this constitution.
ARTICLE I--Declaration of Rights
Sec. 18. Freedom of worship; liberty of conscience; state religion; public funds.
The right of every person to worship Almighty God according to the dictates of conscience shall never by infringed; nor shall any person be compelled to attend, erect or support any place of worship, or to maintain any ministry, without his consent; nor shall any control of, or interference with, the rights of conscience be permitted, or any preference be given by law to any religious establishments or modes of worship; nor shall any money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries.
The Wisconsin courts have previously interpreted the free exercise provision broadly, requiring a showing of a compelling state interest to justify a burden on religious belief, Kollasch v. Adamany, 299 N.W.2d 899 (Wis. App. 1980)("only gravest abuses endangering paramount interests").
Historically, the Wisconsin Supreme Court has interpreted the nonestablishment provisions of § 18 more strictly than the federal Establishment Clause: "[T]he Wisconsin Constitution is more prohibitive than the First Amendment. . .". State ex. rel. Warren v. Reuter. 170 N.W.2d 790. 802 (Wis. 1969). See State ex rot Reynolds v. Nusbaum, 115 N.W.2d 761 (Wis. 1962)(where the court rejected the child-benefit theory in holding that public transportation of pupils to parochial schools violated § i 8). In Nusbaum, the court also construed the terms "religious societies" and "seminaries" broadly to include religious organizations and parochial schools. Id. at 765.
Since 1972, the court has apparently stepped back from its broader construction of § is. State ex. rel. Warren v. Nusbaum, 198 ..2d 650, 658 (Wis. 1972) ('the federal and state constitutional provisions relating to freedom of religion ... and to serve the same dual purpose"); however, the court has continued to send mixed signals by stating that § 18 is "more specific" than the First Amendment but carries the same import." State ex. rel. Wis. Health Facilities v. Linder, 280 N.W.2d 773, 783 (Wis. 1979). But see King v. Village of Waunakee, 449 N.W.2d 237 (Wise. Ct. App. 1993) (applying the Establishment Clause and § 18 similarly to uphold a village nativity scene on public park).
The phrase 'for the benefit of is interpreted to encompass the federal "primary effect" test, thus allowing for incidental benefits to religion. State ex. rel. Warren
v. Nusbaum, 219 N.W.2d 577 (Wis.1974). In State ex. rel. Weiss v. Dist Sd. of School Dist. 8, 44 N.W. 967 ONis. 1890), the Wisconsin Supreme Court became one of the earliest courts to hold that organized Bible reading in the public schools was unconstitutional. In so holding, the court said the state constitution "probably furnished a more complete bar to
any preference for, or discrimination against, any religious sect, organization, or society than any other state in the Union." Id. at 977.
Sec. 9. Religions tests prohibited
No religious tests shall ever be required as a qualification for any office of public trust under the state and no person shall be rendered incompetent to give evidence in any court of law or equity in consequence of his opinions on the subject of religion.
Sec. 23. Transportation of school children.
Nothing in this constitution shall prohibit the legislature from providing for the safety and welfare of children by providing for the transportation of children to and from any parochial or private school or institution of learning.
Cited in Holy Trinity Community School v. Kahl, 262 N.W.2d 210 (Wis. 1978).
Sec. 24. Use of school buildings.
Nothing in this constitution shall prohibit the legislature from authorizing, by law, the use of public school buildings by civic, religious or charitable organizations during nonschool hours upon payment by the organization to the school district of reasonable compensation for such use.
Sec. 24. Lotteries and divorces.
(3) The legislature may authorize the following binge games licensed by the state, but all profits shall accrue to the licensed organization and no salaries, fees or profits may be paid to any other organization or person: binge games operated by religious, charitable, service, fraternal or veterans' organizations or those to which contributions are deductible for federal or state income tax purposes.
(4) The legislature may authorize the following raffle games licensed by the state, but all profits shall accrue to the licensed local organization and no salaries, fees or profits may be paid to any other organization or person: raffle games operated by local religious, charitable, service, fraternal or veterans' organizations or those to which contributions are deductible for federal or state income tax purposes. The legislature shall limit the number of raffles conducted by any such organization.
Sec. 3. District schools; tuition; sectarian instruction; released time.
The legislature shall provide by law for the establishment of district schools, which shall be as nearly uniform as practicable; and such schools shall be free and without charge for tuition to all children between the ages of 4 and 20 years; and no sectarian instruction shall be allowed therein; but the legislature by law may, for the purpose of religious instruction outside the district schools, authorize the release of students during regular school hours.
Cited in Holt v. Thompson, 225 N.W.2d 678 (Wis. 1975).
(Source of information Stars in the Constitutional Constellation, Federal and State Constitutional provisions on Church and State, Annotated by Steven K. Green Esq. Edited by Regina Reaves Hayden, (1993) pp 135-137)