Establishment Clause in the United States

Introduction to the Establishment Clause

According to the Encyclopedia of the American Constitution, three themes dominate recent Supreme Court decision making under the First Amendment’s establishment of religion clause. First, the Court has continued to follow the doctrinal framework of everson v. board of education (1947) and lemon v. kurtzman (1971). (…)

At the close of the twentieth century, the Supreme Court’s jurisprudence of the establishment clause appears to be in radical transition. Between world war II and the 1980s, the Court adhered to a largely separationist understanding of the establishment clause.

Development of the Establishment Clause

The first part of the First Amendment’s protection of freedom of religion is known as the Establishment Clause. It declares that Congress shall make no law “respecting an establishment of religion.” Americans continue to disagree about what constitutes an establishment of religion. Accommodationists believe that the government must make allowances for the significant role that religion plays in American life. Separationists argue that the Constitution prohibits any mingling of church and state.

Baptists played a critical role in the early development of the separation of church and state in America. After Thomas Jefferson was elected president, the Danbury Baptist Association in Connecticut wrote him a letter protesting the fact that in their state “religion is considered as the first object of legislation.” Jefferson replied in 1802 that the First Amendment prohibited the U.S. Congress from taking such action, “thus building a wall of separation between church and state.”

The Supreme Court quoted Jefferson’s metaphor in Everson v. Board of Education (1947). In that case, the Court for the first time incorporated the Establishment Clause to apply to the states-opening the door to a plethora of church-state cases. The Court outlined the prohibitions of the Establishment Clause as follows:

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. Neither can force… a person to go to or to remain away from church against his will, or force him to profess a belief or disbelief in any religion.

Although the Supreme Court in Everson cited Jefferson’s phrase of “a wall of separation between church and state,” those words do not actually appear in the First Amendment. However, neither does the Constitution refer to the terms “God,” “Creator,” or “Divine Providence,” unlike the Declaration of Independence. In addition to Everson, the Supreme Court has used a variety of legal tests regarding Establishment Clause issues. Chief Justice William Rehnquist has long objected to the “wall of separation” doctrine, and the Rehnquist Court has generally taken a more accommodationist view of church-state issues.

Religion and Education

By far most Establishment Clause cases are about religion in the schools. Before taxes supported general public education, schools were largely run by churches. Many Americans became accustomed to sectarian values being part of the local curriculum-often to the disadvantage of religious minorities. But because public schools today are agents of the state, religious activity in them raises Establishment Clauses issues. So does public aid to private religious schools.

Vouchers

One form of government aid to religious schools is through vouchers, which allow parents to pay tuition at private schools using public funds. Supporters of vouchers charge that the public schools are failing low-income, minority students, and that vouchers are one way to improve student performance by increasing competition for tax dollars spent on education. Voucher advocates maintain that just as students may use government funds to attend religious colleges, parents should also have the choice of using tax dollars for tuition at private schools. Critics of vouchers believe that government funding of parochial schools violates the Establishment Clause, because such programs would directly fund religious instruction-a more crucial component of primary and secondary education at parochial schools than at religious colleges. Furthermore, critics charge, such programs would eviscerate the public schools, which must serve all students regardless of income or learning disabilities In Zelman v. Simmons-Harris (2002), the Supreme Court ruled that a voucher system established in Cleveland, Ohio for poor children in failing schools did not violate the Establishment Clause. The Court held that a voucher program is constitutional if it is “neutral with respect to religion and provides assistance directly to a broad class of citizens,” who then select religious schools out of a “genuine and independent private choice.”

The dissenting justices argued that using tax dollars to pay for religious indoctrination could never be “neutral” regarding religion.

Evolution

State laws governing how evolution is taught in the public schools also raises Establishment Clause questions. Some Americans believe the scientific theory of evolution conflicts with the biblical version of creation. In 1925, legendary lawyer Clarence Darrow unsuccessfully defended John Scopes against a charge of violating Tennessee law by teaching evolution. The state supreme court overturned Scopes’s conviction, and the U.S. Supreme Court never ruled in his case. For the first time, the Supreme Court struck down a state law banning the teaching of evolution in Epperson a Arkansas (1968). The Court also ruled in Edwards v. Aguillard (1987) that a Louisiana law mandating the teaching of biblical “creation science” along with the theory of evolution violated the Establishment Clause.
Equal Access.

In 1984, Congress passed the Equal Access Act. It required that public high schools receiving government funds allow student groups to meet, regardless of their religious or political contentif the school allowed noncurricular clubs in general. The Supreme Court held that this law did not violate the Establishment Clause in Westside Community Schools v. Mergens (1990). Wrote Justice Sandra Day O’Connor: “There is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.”

The Supreme Court extended this rationale regarding freedom of speech for religious groups in Lamb’s Chapel v. Center Moriches Union Free School District (1993). In that case, the Court upheld the right of adult religious groups to use school facilities after hours, if other nonschool groups are allowed to meet. And in Good News Clubn Milford Central School (2001), the Court ruled that after-school religious groups involving young students must be allowed to meet on the same basis as nonreligious groups.

School Prayer

Perhaps the most controversial issue involving the Establishment Clause is prayer in the public schools. The Supreme Court ruled in Engel v. Vitale (1962) that official prayer in public schools violated the Establishment Clause, even if students were not forced to participate in such prayers. In that case, the New York State Board of Regents had composed a prayer to begin each school day: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our Country.” But the Court held that “in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.”

The next year, in Abington School District v. Schempp (1963), the Supreme Court also overturned a Pennsylvania law mandating that each school day open with the Lord’s prayer and Bible readings. However, in Wallace njaffree (1985), the Court indicated that an official “moment of silence” could pass constitutional muster if instituted with a secular purpose. Nonetheless, the Court struck down the Alabama law at issue in that case because its legislative history demonstrated that the state “intended to characterize prayer as a favored practice.”

The Supreme Court also ruled in Lee v. Weisman (1992) that official prayers at graduation ceremonies in public schools were unconstitutional. Moreover, in Santa Fe Independent School District v. Doe (2000), the Court held that a high school’s policy allowing students to vote on speakers before football games, and encouraging invocations, was public rather than private speech. In such cases, said the Court, the religious nature of the speech violated the Establishment Clause.

The Supreme Court has never outlawed voluntary prayer by individual students. But the Court has prohibited the public schools from sponsoring religious activity. The Court has even held that the study of religion or the Bible can be included in public school instruction, as long as it is carried out in a secular manner. Nonetheless, many Americans support a constitutional amendment that would allow official prayer in the public schools.

Religion in the Public Square

Besides education, the Establishment Clause also affects the role of religion in public life. In general, the Supreme Court has been more willing to allow religious expression in public settings when the impressionable nature of schoolchildren is not involved. Thus, the Court ruled in Marsh a Chambers (1983) that prayers to open daily legislative sessions, even with government-funded chaplains, are constitutional. Noting the historical roots of such opening prayers, the Court argued that adult legislators were not subject to peer pressure or religious indoctrination.

State-sponsored holiday displays also raise Establishment Clause issues.

During the winter, many local governments erect decorations celebrating Christmas, a Christian holiday, and Hanukkah, a Jewish holiday. The Supreme Court upheld such displays in Lynch v. Donnelly (1984), as long as they included secular symbols of the season as well as religious ones. This “two reindeer rule,” as critics described it, led many municipalities to add Santa Claus and his sleigh to their holiday decorations. However, private groups have the right to place religious displays on public property, on a nondiscriminatory basis with other groups. In Capitol Square Review n Pinette (1995), the Supreme Court allowed the Ku Klux Klan to display a cross on a public square near the state capitol of Ohio.

When Government Aids Religion

Another issue is at what point government regulations that benefit religion violate the Establishment Clause. Regarding tax exemption of religious property and contributions, the Supreme Court ruled in Walz v. Tax Commission (1970) that such exemptions were permissible because other nonreligious charitable and educational organizations also were tax exempt. The Supreme Court also upheld Sunday closing laws, or “blue laws,” in McGowan v. Maryland (1961) because they served a secular purpose by establishing a uniform day of rest.

Constitution’s Establishment Clause Division

(In) Noah Feldman (…) book, “Divided by God: America’s Church-State Problem—and What We Should Do About It,” he sees a country split between those he calls “legal secularists,” who want to keep religion out of public life, and those he terms “values evangelicals,” who want religion to be a central part of it. To Feldman, a professor at New York University School of Law, legal secularists tend to be blue-state Democrats who seldom see the inside of a church. Values evangelicals, by contrast, tend to be found in the red states, overwhelmingly to vote Republican, and to want politicians to speak the language of faith and make decisions based on faith.

Feldman contends that the best hope for bridging this chasm is for both red and blue to give a little. Legal secularists, he argues, should agree to allow religious symbols and religious points of view into the public space, because doing so will make values evangelicals feel less excluded. Feldman is not very specific about the circumstances under which he would find this desirable, although he seems to think that the Supreme Court has gone too far in taking religion out of the schools. For their part, he says, values evangelicals need to accept that public funding of religious institutions and activities is inherently divisive and cannot be permitted. Again, Feldman is not too specific, but he appears to be unhappy with the results of legislation that facilitates government funding of faith-based social services.

Feldman finds support for his positions in the historical record. He believes that the Constitution permits religion to play a role in civic life, but that government should neither fund religious activities nor sanction them in a way that might trample on the rights of those who are not religious or who belong to different religious communities—”no coercion, no money,” as he puts it. According to Feldman, this would mean abandoning the requirement articulated by the Supreme Court “that state action must have a secular purpose” and the idea articulated by Justice Sandra Day O’Connor “that the state must not ‘endorse’ religion.”

Feldman has made the mistake of confusing noise for numbers—that is, of assuming that the most vociferous secularists and evangelicals represent the majority. His telling of American religious history, after the founding period, focuses on the stories of these two communities, beginning with the debates over Darwin at the end of the 19th century. In fact, most Americans are neither militantly secular nor militantly religious, and there is, and always has been, fairly broad agreement about the proper role of religion in American life.

Nearly all Americans regard religion as a matter for each adult to determine for himself. Each is free to be religious or not, and to observe religion in whatever ways he chooses, as long as his conduct does not violate the law. In contrast to most of the world, religious affiliation in the United States is not a matter of race or inheritance or geography. Americans may be the most religious people in the modern West, but what unites them is neither dogma nor ritual, but rather a fierce deference to individual conscience.

It is difficult to exaggerate the effect that this individualism has had on religious life in the U.S. While each new wave of immigrants has brought with it religious orthodoxies, they have gradually been eroded by the voluntary and noncoercive nature of religious life. As the historian Sidney Mead observed almost 50 years ago, “From the beginning, the subtle magic of space began to work upon the tight little islands of transplanted authoritarians themselves, eroding their most ingeniously contrived and zealously guarded barriers of creed and logic and doctrine.” The availability of space and the disestablished nature of American religion meant that first Protestant churches, and then other religious communities, fragmented over time—so that today, in the Protestant denominations alone, there are thousands of different churches.

New religious communities brought new ideas of what it meant to be religious: There were Catholics, who thought that the sacraments should structure your life as a Christian and that reading the Bible unguided by church teaching was dangerous; Jews, who thought that being religious was about the historical experience of a people and about obeying God’s commandments, not about belief; Native Americans, whose religious traditions were physically located in sacred spaces, not in a pious heart; spiritual syncretists, who borrow from all traditions; and so on. Such religious beliefs have not fit easily at first with the politics of democratic liberalism, but for the most part they have been successfully integrated into American life.

The absence of a national religion, or of any form of religion sponsored by the government, has also created a situation in which clerical elites must depend on their own charisma and entrepreneurial spirit for their authority and continued employment—and in which congregations will, and sometimes do, vote with their feet. The dramatic response of American Catholics to their church’s abuse scandal is a recent example: Their financial support for the official church diminished, and many started attending Protestant churches. The U.S. has created a free market in religion, which makes it virtually impossible to impose religious conformity. While the country has known religious discrimination, bigotry based on creed, like other forms of prejudice, has been progressively tamed by America’s ideology of equality.

Insufficient attention to this larger story of American religion means that Feldman exaggerates the importance of the Supreme Court’s opinions in this area. Some of them, like those dealing with school prayer, have been touchstones in the culture wars, but in recent decades, the court’s opinions about religion have moved in a direction that is consistent with the intentions of the founders and with America’s core commitment to equality before the law. The direction is also appropriate in a society with a rich variety of religious practices. Although the court can be accused of muddled reasoning in many cases, the overall trend in its opinions is clear and corresponds to the realities of American religious life. The court’s jurisprudence of equality has, in effect, neutralized the legal significance of differences between religions.

SINCE THE EARLY 1980s, the court has, in a series of decisions, staked out a position that is roughly as follows: Faith-based organizations may be funded by government as long as equal funding is available to nonreligious organizations that provide the same services (Zelman v. Simmons-Harris); the Constitution does not require that religiously motivated individuals be given exemptions from laws that they believe constrain their religious practices (Employment Division v. Smith); and public religious symbols are fine when what they stand for, say, diversity, does not exclude some citizens from full participation in the political process by representing only a particular tradition (Lynch v. Donnelly).

The Supreme Court no longer separates religion from civic life, as it did when it scrupulously policed government funding of parochial schools, and it no longer accommodates religion by allowing religiously motivated people to exempt themselves from state law, as it did a generation ago when it excused Amish children from public school. Instead, the court has welcomed religion to the public square, with the understanding that religion simply provides one more point of view.

The court’s position is the latest step in the evolution of church-state relations in the U.S., an evolution driven by two centuries of cultural and demographic changes. Individual Americans are, first and most important, equal before the law, whether they are religious or not. While the free exercise of religion, understood as freedom of conscience, is an element of equality, religion is not recognized as a marker of legal identity. American law does not know you as a Scientologist or a Jew or a Zoroastrian. The court’s opinions neutralizing religion reflect the radically disestablished nature of religion in the U.S. Religion is an entirely individual matter, legally speaking. We are on our way to achieving what the founders committed us to: religious freedom in the 18th century, Protestant sense—religious freedom that does not depend on government patronage. There are details to be sorted out, but the direction is clear and strong.

Of all the guidance that the court has provided on issues of religion, it is the support for government funding of religious organizations that seems to trouble Feldman the most. He believes that such funding should not be permitted, and he portrays it as inherently divisive. But though he claims that the historical record supports his argument, Feldman offers little in the way of evidence, perhaps because there isn’t much for him to cite. The government has been providing financial support to religious organizations for more than a century, with very little protest. Catholic Charities and the Salvation Army, to name two groups, have long received government contracts to provide social services, an arena in which they are key players.

To criticize the court for opening the door to the establishment of religion betrays a fundamental misunderstanding of the ways that religious bias can corrupt the body politic. Generally speaking, it is done by stealth—through laws ostensibly related to taxes, families, education, or immigration—and it is usually couched in language not identifiably religious. These are political actions that can only be fought politically, not through attempts by the federal courts to sort out the religious from the nonreligious and to tell both groups what they can and cannot do.

Feldman correctly insists that religious diversity, rooted in individual conscience, is the foundation of America’s religious freedom. In Madisonian terms, it is the multiplicity of sects rather than the Bill of Rights that truly protects America’s religious minorities against majoritarian tyranny. But Feldman does not follow this observation to its logical conclusion—namely, that religion ought to be deconstitutionalized and, as a result, finally and thoroughly disestablished. Feldman’s solution of forbidding the public financing of all religion betrays a lack of faith in the egalitarian impulses that have served to keep religious differences in check.

To regard religious freedom as principally a matter of individual conscience, as Americans do, is not a neutral position. It is a theological position because it establishes in law one very Protestant view of what religion is. To impose this view on all Americans—to give it legal force—is, in a sense, a denial of religious freedom. Many non-Americans, and some Americans, have made this point. But it may be the only way to reconcile religion and politics in a liberal democratic society with such diverse religious traditions. It is, at any rate, our way.

Winnifred Fallers Sullivan is a Visiting Scholar at the American Bar Foundation and is the author of The Impossibility of Religious Freedom.

State Aid and the Establishment Clause