Establishment Clause

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The Establishment Clause is the first of several pronouncements in the First Amendment to the United States Constitution, stating,

Together with the Free Exercise Clause ("... or prohibiting the free exercise thereof"), these two clauses make up what are called the "religion clauses" of the First Amendment.^[1]

The establishment clause has generally been interpreted to prohibit 1) the establishment of a national religion by Congress, or 2) the preference by the U.S. government of one religion over another. The first approach is called the "separation" or "no aid" interpretation, while the second approach is called the "non-preferential" or "accommodation" interpretation. The accommodation interpretation prohibits Congress from preferring one religion over another, but does not prohibit the government's entry into religious domain to make accommodations in order to achieve the purposes of the Free Exercise Clause.

Origin

The establishment clause arose during James Madison's efforts to have the constitution ratified. Virginia had disestablished the gentry-supported Church of England during and after the American Revolution. This left the Baptists, a white middle-class denomination, in a position of political influence. Col. Thomas Barber, an opponent of the constitution in Madison's home of Orange County, Virginia, began a campaign for election to the state ratifying convention. He garnered support among the local Baptists by warning them that the constitution had no safeguard against creating a new national church. To head off Barber's challenge, Madison met with influential Baptist preacher John Leland and promised that, in exchange for Leland's support of ratification, he would sponsor several amendments that were ultimately combined into the First Amendment.

Incorporation

Prior to the enactment of the Fourteenth Amendment to the United States Constitution in 1868, the Supreme Court generally held that the substantive protections of the Bill of Rights did not apply to state governments. Subsequently, under the Incorporation doctrine, the Bill of Rights has been broadly applied to limit state and local government as well. The process of incorporating the two Religion Clauses in the First Amendment was twofold. The first step was the Supreme Court’s conclusion in 1940 that the Free Exercise Clause was made applicable to the states through the Fourteenth Amendment.^[2] Conceptually, this raised few difficulties: the Due Process Clause protects those rights in the Bill of Rights “implicit in the concept of ordered liberty,”^[3] and free exercise of religion is a quintessential individual right (and had been recognized as such at the state level from the beginning).^[4]

Incorporation of the Establishment Clause in 1947,^[5] however, was much more tricky and has been subject to much more critique.^{[6][7][8][9][10]} The controversy surrounding Establishment Clause incorporation primarily stems from the fact that one of the intentions of the Establishment Clause was to prevent Congress from interfering with state establishments of religion that existed at the time of the founding (at least six states had established religions at the founding^[11]) – a fact conceded by even those members of the Court who believe the Establishment Clause was made applicable to the states through incorporation.^[12] Critics have also argued that the Due Process Clause of the Fourteenth Amendment is understood to incorporate only individual rights found in the Bill of Rights; the Establishment Clause   unlike the Free Exercise Clause (which critics readily concede protects individual rights)^[13][14]   does not purport to protect individual rights.^[15]

Financial assistance

The Supreme Court first considered the question of financial assistance to religious organizations in Bradfield v. Roberts (1899). The federal government had funded a hospital operated by a Roman Catholic institution. In that case, the Court ruled that the funding was to a secular organization—the hospital—and was therefore permissible.

In the twentieth century, the Supreme Court more closely scrutinized government activity involving religious institutions. In Everson v. Board of Education (1947), the Supreme Court upheld a New Jersey statute funding student transportation to schools, whether parochial or not. Justice Hugo Black held,

The "establishment of religion" clause of the First Amendment 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. Neither can force nor influence 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. 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. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between church and State."

The New Jersey law was upheld, for it applied "to all its citizens without regard to their religious belief." After Everson lawsuits in several states sought to disentangle public moneys from religious teaching, the leading case being the 1951 Dixon School Case out of New Mexico.^[16]

The Jefferson quotation cited in Black's opinion is from a letter Jefferson wrote in 1802 to the Baptists of Danbury, Connecticut, that there should be "a wall of separation between church and state." Critics of Black's reasoning (most notably, former Chief Justice William H. Rehnquist) have argued that the majority of states did have "official" churches at the time of the First Amendment's adoption and that James Madison, not Jefferson, was the principal drafter. However, Madison himself often wrote of "perfect separation between the ecclesiastical and civil matters" (1822 letter to Livingston), "line of separation between the rights of religion and the civil authority... entire abstinence of the government" (1832 letter Rev. Adams), and "practical distinction between Religion and Civil Government as essential to the purity of both, and as guaranteed by the Constitution of the United States" (1811 letter to Baptist Churches).

In Lemon v. Kurtzman (1971), the Supreme Court ruled that government may not "excessively entangle" with religion. The case involved two state laws: one permitting the state to "purchase" services in secular fields from religious schools, and the other permitting the state to pay a percentage of the salaries of private school teachers, including teachers in religious institutions. The Supreme Court found that the government was "excessively entangled" with religion, and invalidated the statutes in question. The excessive entanglement test, together with the secular purpose and primary effect tests thereafter became known as the Lemon test, which judges have often used to test the constitutionality of a statute on establishment clause grounds.

The Supreme Court decided Committee for Public Education & Religious Liberty v. Nyquist and Sloan v. Lemon in 1973. In both cases, states—New York and Pennsylvania—had enacted laws whereby public tax revenues would be paid to low-income parents so as to permit them to send students to private schools. It was held that in both cases, the state unconstitutionally provided aid to religious organizations. The ruling was partially reversed in Mueller v. Allen (1983). There, the Court upheld a Minnesota statute permitting the use of tax revenues to reimburse parents of students. The Court noted that the Minnesota statute granted such aid to parents of all students, whether they attended public or private schools.

While the Court has prevented states from directly funding parochial schools, it has not stopped them from aiding religious colleges and universities. In Tilton v. Richardson (1971), the Court permitted the use of public funds for the construction of facilities in religious institutions of higher learning. It was found that there was no "excessive entanglement" since the buildings were themselves not religious, unlike teachers in parochial schools, and because the aid came in the form of a one-time grant, rather than continuous assistance. One of the largest recent controversies over the amendment centered on school vouchers—government aid for students to attend private and predominantly religious schools. The Supreme Court, in Zelman v. Simmons-Harris (2002), upheld the constitutionality of private school vouchers, turning away an Establishment Clause challenge.

State-sanctioned prayer in public schools

Earl Warren was Chief Justice when Engel v. Vitale was decided.

Further important decisions came in the 1960s, during the Warren Court era. One of the Court's most controversial decisions came in Engel v. Vitale in 1962. The case involved the mandatory daily recitation by public school officials of a prayer written by the New York Board of Regents, which read "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country". The Supreme Court deemed it unconstitutional and struck it down, with Justice Black writing "it is no part of the official business of government to compose official prayers for any group of American people to recite as part of a religious program carried out by the Government." The reading of the Lord's Prayer or of the Bible in the classroom of a public school by the teacher was ruled unconstitutional in 1963. The ruling did not apply to parochial or private schools in general. The decision has been met with both criticism and praise. Many social conservatives are critical of the court's reasoning, including the late Chief Justice William H. Rehnquist. Conversely, the ACLU and other civil libertarian groups hailed the court's decision.

In Abington Township v. Schempp (1963), the case involving the mandatory reading of the Lord's Prayer in class, the Supreme Court introduced the "secular purpose" and "primary effect" tests, which were to be used to determine compatibility with the establishment clause. Essentially, the law in question must have a valid secular purpose, and its primary effect must not be to promote or inhibit a particular religion. Since the law requiring the recital of the Lord's Prayer violated these tests, it was struck down. The "excessive entanglement" test was added in Lemon v. Kurtzman (vide supra).

In Wallace v. Jaffree (1985), the Supreme Court struck down an Alabama law whereby students in public schools would observe daily a period of silence for the purpose of private prayer. The Court did not, however, find that the moment of silence was itself unconstitutional. Rather, it ruled that Alabama lawmakers had passed the statute solely to advance religion, thereby violating the secular purpose test.

The 1990s were marked by controversies surrounding religion's role in public affairs. In Lee v. Weisman (1992), the Supreme Court ruled unconstitutional the offering of prayers by religious officials before voluntarily attended ceremonies such as graduation. Thus, the Court established that the state could not conduct religious exercises at public occasions even if attendance was not strictly compulsory. In Santa Fe Independent School Dist. v. Doe (2000), the Court ruled that a vote of the student body could not authorize student-led prayer prior to school events.

In 2002, controversy centered on a ruling by the Court of Appeals for the Ninth Circuit in Elk Grove Unified School District v. Newdow (2002), which struck down a California law providing for the recitation of the Pledge of Allegiance (which includes the phrase "under God") in classrooms. Each House of Congress passed resolutions reaffirming their support for the pledge; the Senate vote was 99–0 and the House vote was 416–3. The Supreme Court heard arguments on the case, but did not rule on the merits, instead reversing the Ninth Circuit's decision on standing grounds.

Religious displays

The inclusion of religious symbols in public holiday displays came before the Supreme Court in Lynch v. Donnelly (1984), and again in Allegheny County v. Greater Pittsburgh ACLU (1989). In the former case, the Court upheld the public display of a crèche, ruling that any benefit to religion was "indirect, remote, and incidental." In Allegheny County, however, the Court struck down a crèche display, which occupied a prominent position in the county courthouse and bore the words Gloria in Excelsis Deo, the words sung by the angels at the Nativity (Luke 2:14 in the Latin Vulgate translation). At the same time, the Allegheny County Court upheld the display of a nearby menorah, which appeared along with a Christmas tree and a sign saluting liberty, reasoning that "the combined display of the tree, the sign, and the menorah ... simply recognizes that both Christmas and Hanukkah are part of the same winter-holiday season, which has attained a secular status in our society."

In 2001, Roy Moore, then Chief Justice of Alabama, installed a monument to the Ten Commandments in the state judicial building. In 2003, he was ordered in the case of Glassroth v. Moore by a federal judge to remove the monument, but he refused to comply, ultimately leading to his removal from office. The Supreme Court refused to hear the case, allowing the lower court's decision to stand.

On March 2, 2005, the Supreme Court heard arguments for two cases involving religious displays, Van Orden v. Perry and McCreary County v. ACLU of Kentucky. These were the first cases directly dealing with display of the Ten Commandments the Court had heard since Stone v. Graham (1980). These cases were decided on June 27, 2005. In Van Orden, the Court upheld, by a 5-4 vote, the legality of a Ten Commandments display at the Texas state capitol due to the monument's "secular purpose." In McCreary County, however, the Court ruled 5-4 that displays of the Ten Commandments in several Kentucky county courthouses were illegal because they were not clearly integrated with a secular display, and thus were considered to have a religious purpose.

See also

• Faith-based initiatives
• Free Exercise Clause of the First Amendment
• Separation of church and state in the United States
• United States religious history

References

1. ^ U.S. Constitution: First Amendment, Findlaw.com.
2. ^ Cantwell v. Connecticut, 310 U.S. 296 (1940).
3. ^ Palko v. Connecticut, 302 U.S. 319, 326 (1937)
4. ^ Michael W. McConnel, John H. Garvey, and Thomas C. Berg, Religion and the Constitution (2006), p. 74.
5. ^ Everson v. Board of Education, 330 U.S. 1 (1947).
6. ^ McConnel, p. 74.
7. ^ School District of Abington Township v. Schempp, 374 U.S. 203 (1963) (Brennan, J., concurring) (“The absorption of the Establishment Clause has, however, come later and by a route less easily charted.”)
8. ^ William K. Lietzau, Rediscovering the Establishment Clause: Federalism and the Rollback of Incorporation, 39 DePaul L. Rev. 1191 (1990) (arguing against incorporation of the Establishment Clause).
9. ^ Stephen D. Smith, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom ch. 2 (1995) (arguing against incorporation of the Establishment Clause).
10. ^ Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004) (Thomas, J., concurring) (“I accept that the Free Exercise Clause . . . applies against the States through the Fourteenth Amendment. But the Establishment Clause is another matter.”)
11. ^ McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1437 (1990)
12. ^ Abington v. Schempp, 374 U.S. 203 (1963) (Brennan, J., concurring)
13. ^ McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1437 (1990)
14. ^ Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004) (Thomas, J., concurring).
15. ^ McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1437 (1990)
16. ^ Pfeffer, Leo (1967) Church, state, and freedom Beacon Press, Boston, Massachusetts, pages 545-549

• Marnell, William, H. (1964). The First Amendment: Religious Freedom in America from Colonial Days to The School Prayer Controversy. Doubleday & Company. 

Research resources

• First Amendment Library entry for Establishment Clause Cases (with links to all of the Supreme Court's Establishment Clause cases)
• Defending Jefferson's "wall of separation" metaphor
• Religious Expression in American Public Life: A Joint Statement of Current Law

Further reading

• Scarberry, Mark S. (April 2009). "John Leland and James Madison: Religious Influence on the Ratification of the Constitution and on the Proposal of the Bill of Rights". Penn State Law Review 113 (3): 733–800. http://pennstatelawreview.org/articles/113%20Penn%20St.%20L.%20Rev.%20733.pdf. 
• Wiecek, William M.; United States. Permanent Committee for the Oliver Wendell Holmes Devise (2006). "The Establishment of Religion". The birth of the modern Constitution: the United States Supreme Court, 1941-1953. Cambridge University Press. pp. 250–284. ISBN 978-0-521-84820-6. http://books.google.com/books?id=eaAivaq6zVAC&pg=PA250.