Establishment of Religion

The Heritage Guide to the Constitution

Establishment of Religion

Amendment I

Congress shall make no law respecting an establishment of religion....

In recent years the U.S. Supreme Court’s rulings have placed the First Amendment’s Establishment and Free Exercise of Religion Clauses tension, but it was not so for the Framers. None of the Framers believed that a public role for religion was an evil in itself. Rather, many opposed an established church like the established Anglican Church in England because they believed that it was a threat to the free exercise of religion. Their primary goal was to protect free exercise. That was the main thrust of James Madison’s famous Memorial and Remonstrance Against Religious Assessments (1785), in which he argued that the state of Virginia ought not to pay the salaries of the Anglican clergy because that practice was an impediment to a person’s free connection to whatever religion his conscience directed him.

Nor did most of the founding generation believe that government ought to be “untainted” by religion, or ought not to take an interest in furthering the people’s connection to religion. The Northwest Ordinance (1787), which the First Congress reenacted, stated: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” As President, George Washington put into practice the understanding of most of his contemporaries regarding religion’s place in public life. In his first inaugural address (1789), Washington declared as his “first official act” his “fervent supplications to that Almighty Being who rules over the universe” that He might bless the new government. Addressing his compatriots, Washington said:

In tendering this homage to the Great Author of every public and private good, I assure myself that it expresses your sentiments not less than my own; nor those of my fellow citizens at large less than either. No people can be bound to acknowledge and adore the invisible hand which conducts the affairs of men more than those of the United States.

Washington bracketed his years as President with similar sentiments in his Farewell Address (1796):

Of all the dispositions and habits which lead to political prosperity,Religion and morality are indispensable supports. In vain would that man claim the tribute of Patriotism, who should labor to subvert these great Pillars of human happiness, these firmest props of the duties of Men and citizens. The mere Politician, equally with the pious man, ought to respect and to cherish them.

He then added: “And let us with caution indulge the supposition, that morality can be maintained without religion. . . . [R]eason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle.”

There is nothing in the legislative history of the First Amendment that contradicts Washing-ton’s understanding of the appropriate relation-ship between government and religion. In the First Congress, which drafted the First Amendment, a House committee proposed the following language: “no religion shall be established by law, nor shall the equal rights of conscience be infringed.” But some representatives evinced concern that the proposal might put in doubt the legitimacy of some of the states’ own religious establishments, or at least make it questionable whether taxes could still be earmarked for clergy.

In fact, by the time independence was secured, there was no consensus as to what constituted an “establishment of religion.” Most of the newly independent states retained laws, policies, or practices that would be regarded as religious establishments by twenty-first–century legal standards. There was general agreement that exclusive legal preference for one church or religion over all others—as was the prevailing arrangement in Europe—constituted an establishment of religion. So, too, was an arrangement where the civil government imposed articles of faith and forms of worship on all those under its authority. Although this definition was widely accepted, there were disputes about whether or not specific state policies and practices constituted an establishment. The use of general assessments, which taxed all residents for the support of religion, was an especially contentious policy. Although regarded as an odious establishment by some, others denied that such tax-supported clergy constituted an “establishment” at all.

In reply to the expressed concerns, Representative James Madison of Virginia believed modifying the proposal to prohibit a “national religion” would be sufficient to allay that apprehension and would make clear that the new government was not to impinge on the rights of conscience by establishing a governmental connection to a church. Representative Samuel Livermore of New Hampshire suggested this formulation: “Congress shall make no laws touching religion, or infringing the rights of conscience.” After some debate, the House finally settled on this language: “Congress shall make no law establishing religion, or prohibiting the free exercise thereof, nor shall the rights of Conscience be infringed.”

The Senate, however, wanted more specificity. After a number of attempted formulations, the Senate agreed upon the formula: “Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion,” which would prohibit a European-type establishment, but likely would have permit-ted direct financial support to a sect. Settling the difference in a conference committee (of which Madison was a member) between the House and the Senate, all agreed on the final version: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The addition of the word “respecting” may be significant. Its meaning seems to signify that Congress may not legislate either to establish a national religion or to disestablish a state religion. As Laurence Tribe has observed, “[a] growing body of evidence suggests that the Framers principally intended the Establishment of Religion Clause to perform two functions: to protect state religious establishments from national displacement, and to prevent the national government from aiding some, but not all, religions.”

Leaving the question of establishment to the states does not entail the absence of religious liberty. Even before the incorporation of the religion clauses and without intervention by the federal courts, religious freedom and tolerance had spread throughout the United States. To be sure, religious conflicts occurred at the local level where discrimination, particularly against Catholics and Jews,existed. The framework established by the Constitution, however, made it possible for religious minorities to gain protection through political representation.

Contemporaneous history strongly indicates that most Framers supported religion, not for credal purposes, but because it promoted civic virtue among the people, which they thought was a necessary element for the maintenance of republican self-government. Nonetheless, when, many decades later and far removed from the Founding, the Supreme Court chose to base its conception of the original understanding of the Establishment of Religion Clause on a phrase from a letter by Thomas Jefferson to the Danbury Baptist Association of Connecticut (1802). Although Jefferson was not directly involved in framing the Constitution or First Amendment, his metaphor of a “wall of separation between church and state” was accepted by the Court as an authoritative expression of the Establishment Clause. This “wall,” the Court said, “must be kept high and impregnable,” even though Jefferson’s own practice as President was inconsistent with a “high and impregnable” barrier. Everson v. Board of Education of Ewing Township (1947); see also Reynolds v. United States (1879).

The modern view of the Establishment of Religion Clause began with Everson v. Board of Education, where the Court adopted a separationist interpretation of the Clause. “The ‘establishment of religion’ clause of the First Amendment,” the Court said, “means at least this: neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. . . . No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.” In this ruling, the Supreme Court also held that the Due Process Clause of the Fourteenth Amendment applied the First Amendment’s proscriptions against establishment to the states.

Although there is vigorous debate as to whether the provisions of the Fourteenth Amendment “incorporate,” or replicate, the guarantees of the Bill of Rights and fasten them on the states, most commentators opine that the Establishment of Religion Clause is the least likely candidate for incorporation. It was designed as a protection of the states against the federal government. It seems anomalous to many scholars, even to some who support incorporation generally, that the Establishment of Religion Clause could be called an individual right for purposes of incorporation into the Fourteenth Amendment. Notwithstanding the historians’ doubts, the Supreme Court has firmly adhered to the incorporation of the Establishment of Religion Clause against the states.

One point on which most church-state scholars agree is that Establishment Clause jurisprudence lacks coherence and consistency. A “moment of silence for meditation and prayer” in public schools is contrary to the Constitution (only if the motive is religious), Wallace v. Jaffree (1985), but a paid chaplain in state legislatures is not, Marsh v. Chambers (1983). For a time, the Supreme Court permitted states to provide religious schools with textbooks on secular subjects, Board of Education v. Allen (1968), but disallowed states to provide religious schools with instructional equipment like maps, Meek v. Pittenger (1975) (modified by Mitchell v. Helms (2000). Religious schools may not receive funds for maintenance expenses, Committee for Public Education & Religious Liberty v. Nyquist (1973), but places of worship can enjoy a tax exemption, Walz v. Tax Commission of City of New York (1970). Prayers at high school football games are invalid, Santa Fe Independent School District v. Doe (2000), but the bailiff’s call, “God Save this Honorable Court,” may be heard within the chambers of the Supreme Court.

Since Everson, the Supreme Court has developed a number of different and conflicting approaches to interpreting the Establishment of Religion Clause, namely: (1) separationism, (2) coercion, and (3) endorsement.

The separationist view of Everson led to the banning of state-sponsored prayer and Bible reading in public schools. Engel v. Vitale (1962); School District of Abington Township v. Schempp (1963). To enforce separationism, the Court set-tled on a three-part test in Lemon v. Kurtzman (1971). In order to withstand an Establishment Clause challenge, the Lemon test requires a court to find that a law, practice, or policy in question has: (1) a secular purpose, (2) a primary effect that neither advances nor inhibits religion, and (3) does not create excessive entanglement with religion. The strict separationists on the Court did allow for a few exceptions to the Lemon test under the rubric of “ceremonial deism,” whereby particular customary practices may be protected from Establishment Clause scrutiny if “they have lost through rote repetition any significant religious content.” Lynch v. Donnelly (1984).

A major historical challenge to the separationist position emerged in the dissent written by (then) Justice William H. Rehnquist in Wallace v. Jaffree. Rehnquist argued that the original meaning of the Establishment of Religion Clause only “forbade establishment of a national religion, and forbade preference among religious sects or denominations.” In defending this “no denominational preference” position and criticizing strict separationism, Rehnquist observed that Thomas Jefferson is “a less than ideal source of contemporary history as to the meaning of the Religion Clauses of the First Amendment.” Absent from the country when the Constitution and Bill of Rights were written, Jefferson was not involved in the drafting of the First Amendment. Although Jefferson, along with James Madison, had earlier played prominent roles in the legislative battles to promote religious liberty in revolutionary Virginia, Rehnquist disputed that the views they had expressed in the Virginia debates found equivalent expression in the First Amendment.

Rehnquist offered several other pieces of evidence to contradict the notion that the “wall of separation” metaphor accurately represents First Amendment principles, including numerous Thanksgiving proclamations and other actions by Presidents and Congress, as well as the Northwest Ordinance, which Congress took up on the same day the proposed amendments crafted into the Bill of Rights were introduced. The Northwest Ordinance is generally known for providing land grants for public schools in the new states and territories, but it also allowed grants for religious schools, until Congress limited grants to nonsectarian institutions in 1845.

Although these various pieces of historical evidence support the proposition that the Establishment of Religion Clause merely requires “no preference between denominations,” others criticize that view on originalist grounds. For instance, Douglas Laycock has noted that the Congress that drafted the First Amendment rejected several preliminary drafts that would have clearly stated the “no preference” principle—for example, one draft stated that “Congress shall make no law establishing One Religious Sect or Society in preference to others.” Instead, Congress adopted the arguably broader language for-bidding any law “respecting an establishment of religion.” The “no preference” position, whatever its originalist merits, has not figured in Supreme Court opinions since the 1985 Rehnquist dissent in Wallace v. Jaffree.

As another alternative to separationism, some Justices assert that the Establishment of Religion Clause was originally meant only to prohibit the government from coercing individuals to practice religion or support it. It is often associated with Justices who believe the government has the power to “accommodate” the diverse religious practices of the people. This principle, to which the Court has given attention in decisions such as Lee v. Weisman (1992), would allow government to support religion in ways that do not coerce individuals. For example, states could permit the erection of religious symbols in public places or issue proclamations of thanksgiving to God. This position likewise finds some support in Founding-era statements, such as James Madison’s 1789 explanation to the House that the goal was to prevent a sect or combination of sects from “establish[ing] a religion to which they would compel others to conform,” or from “enforc[ing] the legal observation of it by law.” The “no coercion” principle likewise is consistent with the long line of religious expressions by government, running from the Founding period to the present; government may express religious sentiments as long as it does not force anyone to agree with such expressions or participate in such ceremonies. As applied by the Court, however, particularly in the opinions of Justice Anthony Kennedy, the “no coercion principle” is broad enough to prohibit even student-led nonsectarian prayers at school assemblies (such as graduations or sporting events) if the state, in some way, selected the student for that purpose.

Finally, Justice Sandra Day O’Connor offered an alternative to both the strict separationist view (usually articulated in the Lemon test) and the “no coercion” principle. According to Justice O’Connor, the Establishment Clause prohibits a state from “endorsing” a religion. She defines the test for “endorsement” as whether an objective, reasonable observer would see the state action as sending “a message to nonadherents that they are outsiders, not full members of the political community.” Lynch v. Donnelly. Justice Antonin Scalia, along with several other current members of the Court, have criticized the test, though some of the strict separationists have adopted Justice O’Connor’s wording as supporting their interpretation of the clause. See County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter (1989).

Establishment of Religion Clause jurisprudence remains unsettled as Justices form shifting majorities around one or the other of these different approaches to interpreting the clause. The coercion test was the basis for invalidating prayers in public school settings, Lee v. Weisman; Santa Fe Independent School District v. Doe. Concerning the question whether the phrase “under God” can be part of the Pledge of Allegiance public-school children are allowed (but not required) to recite, the Supreme Court refused to rule in a case because the plaintiff lacked standing (and was not directly injured by the practice). Elk Grove Unified School District v. Newdow (2004).

The Lemon test, or a form of it, was invoked to invalidate the teaching of creationism, Edwards v. Aquillard (1987), and state-sponsored posting of the Ten Commandments in public schools, Stone v. Graham (1980). The endorsement test has provided the formula that a number of Justices have used to decide the constitutionality of religious displays on public property, such as a Nativity scene, County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, and a cross, Capitol Square Review and Advisory Board v. Pinette (1995). In two cases decided the same day in June 2005, the Court added to the doctrinal confusion surrounding the constitutionality of public displays of the Ten Commandments. In McCreary County, Kentucky v. ACLU of Kentucky, the Court, invoking the Lemon test, ruled that a Ten Commandments display in a county courthouse communicated a religious purpose, thus violating the Establishment of Religion Clause. In the companion case, Van Orden v. Perry, a plurality of the Justices held that a Ten Commandments monument erected on the grounds of a state capitol surrounded by other monuments did not violate the clause because the challenged display, when viewed in the light of its history, purpose, and context, did not convey a message of endorsement of religion. The Court, it should be noted, has frequently approved religious expression or symbols on public property as protected by the Freedom of Speech Clause of the First Amendment, Good News Club v. Milford Central School (2001).

After a long series of cases dealing with aid to religious schools, a majority of the Court has embraced the principle that there is no Establishment Clause violation if the state gives tuition aid (e.g., tuition vouchers) directly to the parents who can decide which schools their children will attend, whether religiously affiliated or not, rather than giving the aid directly to the religious school. Zelman v. Simmons-Harris (2002). Finally, the Court has approved “exceptions” based on tradition, such as tax exemptions, Walz v. Tax Commission of City of New York, and legislative chaplains, Marsh v. Chambers, even though the Framers of the Establishment of Religion Clause did not find a provision of a chaplain to be an “exception” but in harmony with a governmental policy of encouraging religious expression and exercise.

In a major ruling for religious autonomy from government interference, the Supreme Court held unanimously in 2012 that the Establishment and Free Exercise of Religion Clauses bar lawsuits brought on behalf of ministers against their churches alleging termination in violation of employment anti-discrimination laws. The case involved a teacher and “commissioned minister” at a church-run school who had claimed that she was fired from her job in violation of the Americans with Disabilities Act. The church and school sought to dismiss a subsequent suit brought by the Equal Employment Opportunity Commission on behalf of the terminated employee, invoking a “ministerial exception” rooted in the First Amendment, which the employer argued prohibited the government’s interference in the employment relationship between a religious institution and its ministers. Chief Justice John Roberts, writing for a unanimous Court, found that the teacher was a “minister” for purposes of the exception and then noted: “The Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.” “Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so,” Roberts continued, “intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.” Nothing less than “the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission” was at stake in this case, the Court concluded. Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012).

John Baker

Professor Emeritus, Louisiana State University, Paul M. Hebert Law Center

John S. Baker, Jr., The Establishment Clause as Intended: No Preference among Sects and Pluralism in a Large Commercial Republic, in The Bill of Rights: Original Meaning and Current Understanding (Eugene W. Hickok, Jr., ed., 1991)





Douglas Laycock, “Noncoercive” Support for Reli-gion: Another False Claim About the Establishment Clause, 26 VAL. U. L. REV. 37 (1991)


Douglas Laycock, “Nonpreferential” Aid to Religion: A False Claim About Original Intent, 27 WM. & MARY L. REV. 875 (1986)

Douglas Laycock, The Underlying Unity of Separation and Neutrality, 46 EMORY L.J. 43 (1997)

Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 WM. & MARY L. REV. 2105 (2003)

Reynolds v. United States, 98 U.S. 145 (1879)

Everson v. Board of Education of Ewing, 330 U.S. 1 (1947)

Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203 (1948)

Zorach v. Clauson, 343 U.S. 306 (1952)

Engel v. Vitale, 370 U.S. 421 (1962)

School District of Abington Township v. Schempp, 374 U.S. 203 (1963)

Epperson v. Arkansas, 393 U.S. 97 (1968)

Bd. of Education v. Allen, 392 U.S. 236 (1968)

Walz v. Tax Commission of City of New York, 397 U.S. 664 (1970)

Lemon v. Kurtzman, 403 U.S. 602 (1971)

Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756 (1973)

Meek v. Pittenger, 421 U.S. 349 (1975)

Stone v. Graham, 449 U.S. 39 (1980)

Marsh v. Chambers, 463 U.S. 783 (1983)

Mueller v. Allen, 463 U.S. 388 (1983)

Lynch v. Donnelly, 465 U.S. 668 (1984)

Wallace v. Jaffree, 472 U.S. 38 (1985)

Witters v. Washington Dept. of Services for Blind, 474 U.S. 481 (1986)

Edwards v. Aguillard, 482 U.S. 578 (1987)

Bowen v. Kendrick, 487 U.S. 589 (1988)

Cnty. of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573 (1989)

Lee v. Weisman, 505 U.S. 577 (1992)

Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (1993)

Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753 (1995)

Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995)

Agostini v. Felton, 521 U.S. 203 (1997)

Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000)

Mitchell v. Helms, 530 U.S. 793 (2000)

Good News Club v. Milford Central School, 533 U.S. 98 (2001)

Zelman v. Simmons-Harris, 536 U.S. 639 (2002)

Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1 (2004)

Van Orden v. Perry, 545 U.S. 677 (2005)

McCreary Cnty. v. ACLU of Kentucky, 545 U.S. 844 (2005)

Hein v. Freedom From Religion Foundation, 551 U.S. 587 (2007)

Salazar v. Buono, 559 U.S. 700 (2010)

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S. Ct. 694 (2012)