Establishment of Religion

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

Amendment I

In recent years the Supreme Court has placed the Establishment and the Free Exercise of Religion Clauses in mutual tension, but it was not so for the Framers. None of the Framers believed that a governmental connection to religion was an evil in itself. Rather, many (though not all) opposed an established church 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 (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's practice concretized the understanding of most of his contemporaries. In his first inaugural address, 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. Directing his words to 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 labour 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.

And he added: "And let us with caution indulge the supposition, that morality can be maintained without religion."

There is nothing in the drafting history of the First Amendment that contradicts Washington's understanding of the appropriate relation between government and religion. In the First Congress, the committee proposal in the House read, "no religion shall be established by law, nor shall the equal rights of conscience be infringed." But some evinced concern that the phrase might put in doubt the legitimacy of some of the states' own religious establishments. Six of the original thirteen states had established churches. James Madison believed modifying the phrasing to prohibit a "national religion" would be sufficient to allay that concern 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 that "Congress shall make no laws touching religion or the rights of conscience." 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 preferred the formula "Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion," which likely would have permitted direct financial support to a sect. In the end, the conference between the House and the Senate agreed on the current version: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The addition of the word "respecting" is significant. It prohibits Congress from legislating either to establish a national religion or to disestablish a state religion. As Laurence Tribe has written, "[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 because it increased virtue among the people, a necessary element for the maintenance of a free republic. Nonetheless, when it came time to speak upon the matter, the Supreme Court preferred to base its conception of the original understanding of the clause on its interpretation of a phrase from a letter by Thomas Jefferson to the Danbury Baptist Association of Connecticut (1802). Although he had been in France during the Constitutional Convention, Jefferson's metaphor of a "wall of separation" was interpreted by the Court as the authoritative statement of a "high and impregnable" barrier between church and state, even though this was itself an expansion beyond Jefferson's own meaning and practice. Everson v. Board of Education of Ewing (1947); see also Reynolds v. United States (1879).

The modern view of the Establishment of Religion Clause began with Everson v. Board of Education of Ewing in 1947, where the Court initiated the current separationist approach to the Establishment of Religion Clause. On the way to reaching its decision, the Supreme Court 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 fastens them on the states, most commentators opine that the Establishment of Religion Clause is the least likely candidate for incorporation. The Establishment of Religion Clause 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 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. As a result of the incorporation of the Religion Clause into the Fourteenth Amendment, almost all of the federal cases compelling "separation of church and state" have been applied against state laws.

The contradictory decisions of the Supreme Court on the Establishment of Religion Clause render the area inchoate if not incoherent. A "moment of silence for meditation and prayer" in school is contrary to the Constitution (only if the motive is religious), Wallace v. Jaffree (1985), but a paid chaplain in Congress or state legislatures is not, Marsh v. Chambers (1983). 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 Commision 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 three different and conflicting views regarding the Establishment of Religion Clause: (1) separationism, (2) coercion, and (3) endorsement.

The separationist view of Everson led to the banning of prayer and Bible reading from public schools. Engel v. Vitale (1962); School District of Abington Township v. Schempp (1963). To enforce separationism, the Court settled on a three-part test in Lemon v. Kurtzman (1971). The Lemon test requires courts to consider whether the law 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. Subsequently, the entanglement element was subsumed into the primary effect inquiry. Agostini v. Felton (1997). 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 in 1985. 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 Bill of Rights was written, Jefferson was not involved in the legislative drafting of the First Amendment. Earlier, Jefferson had figured prominently, along with Madison, in the struggle over religious liberty in Virginia; they shared similar views on these matters and had cooperated during this debate. Nevertheless, in considering Madison's actions in the Congress, as the Rehnquist opinion states, it "is totally incorrect [to] suggest that Madison carried these views onto the floor of the United States House of Representatives when he proposed the language which would ultimately become the Bill of Rights."

Rehnquist offered several other pieces of evidence to contradict the "wall of separation" metaphor, including numerous Thanksgiving proclamations and other actions by Presidents and the Congress, as well as the Northwest Ordinance, which Congress took up on the same day the Bill of Rights was 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, the Congress adopted the arguably broader language forbidding 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, is selecting the student for that purpose.

Finally, Justice Sandra Day O'Connor has 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 of Religion 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 not full members of the political community." Lynch v. Donnelly (1984). Justice Antonin Scalia has criticized the test, though some of the strict separationists have adopted Justice O'Connor's wording as supporting their interpretation of the Establishment of Religion 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 the three tests. Recently the coercion test has been the basis of invalidating prayers in public school settings, Lee v. Weisman; Santa Fe Independent School District v. Doe (2000). 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 recent 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, Stone v. Graham (1980). (The Supreme Court has recently granted a writ of certiorari in two Ten Commandments cases, Van Orden v. Perry and McCreary County, Kentucky v. ACLU of Kentucky.) 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). More frequently, the Court has approved religious practice 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 of Religion 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 (1970), and legislative chaplains, Marsh v. Chambers (1983), 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.

[Editors' Note: In 2005, the Supreme Court continued to maintain doctrinal confusion in two closely divided opinions. The Court, per Justice Stephen G. Breyer, struck down the placement of copies of the Ten Commandments in court houses as violative of the Lemon test, McCreary County v. ACLU of Kentucky, but, in a plurality opinion by Chief Justice William H. Rehnquist, upheld a monument of the Ten Commandments on the Texas State House grounds as a "passive" display recognizing the role of religion in the life of the country, Van Orden v. Perry.]

John Baker
Professor Emeritus
Distinguished Scholar in Residence, Catholic University Columbus School of Law
Louisiana State University, Paul M. Hebert Law Center