Since the Establishment Clause is located at the beginning of the First Amendment, it is referred to at times as our ‘‘first freedom’’: ‘‘Congress shall make no law respecting an establishment of religion . . . .’’ This article will provide a general guide to understanding the Establishment Clause by describing the historical context of its framing, the process by which it was drafted, and the history of its interpretation and application.
In medieval Europe, after the fall of the Roman Empire and the failure of the attempt to replace it with a Christian empire, political power was fragmented. The bond of a common religion was the only bond that united Western Christian society. In this context, as difficult as it is to imagine today, religious persecution seemed to be not only unavoidable, but necessary. It was taken for granted that rulers had both the right and a duty to punish religious error. With the coming of the Reformation in the sixteenth century, Protestants and Catholics disagreed vehemently about the true content of Christian doctrine, but both groups assumed that a ruler’s power would continue to be used to root out and eradicate the errors of those who disagreed with the prevailing side. Reformation-era civil authorities were expected to use their power to enforce religious uniformity.
Accordingly, when the New England colonies were founded by the Puritans, a group known for its commitment to the ‘‘New Reformation’’ project of purifying the Church of England, New England’s colonial legislatures, courts, and magistrates involved themselves in supporting the Puritan faith and suppressing any dissenters. Any who refused to comply were free to leave, in the eyes of the Puritan leadership. Any who would not leave were to be punished, in an effort to force the dissenters to abandon their ways and return to living in conformity with Puritan beliefs and expectations.
The most significant early challenge to religious conformity in New England arose when certain colonists who had come to believe that infant baptism could not be biblically justified would either turn their backs or walk out of church to avoid participating in the baptism of children. These early Puritan dissenters, who came to be known as ‘‘Baptists,’’ were then hailed into court, where they were warned or fined. Those who refused to pay their fines were imprisoned, and the most defiant were whipped.
Meanwhile, in 1636, after being banished from the Massachusetts Bay Colony for his own disagreements with Puritan authorities, Roger Williams had founded the new colony of Providence Plantations, just to the south, where Baptists were free to worship as they pleased. The Puritans’ efforts to suppress those Baptists who remained in Massachusetts continued, unsuccessfully, until 1679. That year, a letter came from King Charles II in which he expressed his support for ‘‘freedom and liberty of conscience’’ for all non- Catholic Christians. Puritan authorities responded by halting the practice of imposing criminal punishments on those who refused to conform to Puritan beliefs and practices.
Although Puritan authorities no longer attempted to enforce religious conformity by persecuting dissenters as criminals, they did continue to attempt to promote the Puritan (or, as it came to be known, Congregational) religion in various ways. Massachusetts authorities subjected Baptists and other dissenters to a compulsory religious taxation system that was designed to fund Congregational churches in every settlement. The authorities also required that only the preachers and churches that they had approved could engage in religious activity. This effectively barred non-Puritan worship in Massachusetts until William and Mary issued Massachusetts a new charter in 1691 that granted religious freedom to all Protestants. As for the religious tax, those who refused to pay could be imprisoned, and their property seized and sold at auction to pay the bill. The prosecution of those who refused to pay the tax continued until the early 1700s, when a series of laws was passed to exempt dissenters from this religious tax. The courts interpreted these exemption laws very narrowly, however, with the result that dissenters were still often subjected to imprisonment and the seizure and sale of their property thereafter.
By the outbreak of the Revolution, Puritanism’s hold on religion in New England had loosened to the point that each locality was permitted to choose (by majority vote) which church to establish. The will of the majority in a given locality determined which church (usually but not always a Congregational church) would receive the religious taxes collected there. It would not be until 1782 that the Baptists succeeded in having this system declared to be a violation of the Massachusetts Constitution.
Elsewhere, not all colonies had formally established a single church as the official religion. In Pennsylvania, Delaware, New Jersey, Rhode Island, and most of New York, no one church was officially established. There were, however, laws requiring religious tests for office; blasphemy laws; and other forms of legal support for the Christian faith. Most of these were still in place through the period that the Constitution was ratified and the First Amendment adopted.
In five Southern colonies, however, from Maryland through Georgia, plus the four counties of metropolitan New York, the Church of England had become the established church. Maryland had originally been founded as a haven for Catholics fleeing persecution in England, but the Glorious Revolution of 1688, which brought about the replacement of Catholic King James II with the Protestants William and Mary, sparked a wave of anti-Catholicism in Maryland that led to the establishment of the Church of England there. Throughout these Southern colonies, laws were enacted to require attendance at Anglican services, to provide financial support for Anglican clergy, to control the clergy selection process, to dictate religious doctrine, to give certain civil powers to church officials, and to penalize participation in non- Anglican worship.
By the mid-1700s, the influx into Virginia of dissenting missionaries who had been inspired by the evangelistic fervor of the Great Awakening had led to the creation of a system that permitted non-Anglicans to worship freely if they were to obtain one of a limited number of licenses. Initially, Presbyterians, Baptists, and other dissenters complied with this system. In the mid-1760s, however, a new type of Baptists, known as Separate-Baptists (ex-New England Congregationalists who had split from their former churches in rigid adherence to the Baptist position on infant baptism) began sending missionaries to Virginia. The Separate-Baptists refused to comply with Virginia’s licensure laws on the grounds that civil governments had no authority to license preachers, for God alone governs the church. From 1768 to 1775, Virginia authorities jailed about forty Separate- Baptists for preaching without a license.
In 1774, after a young James Madison witnessed the jailing of some of these Separate-Baptist preachers, he wrote to a friend that he could no longer countenance the ‘‘diabolical, hell-conceived’’ religious persecution in his home state. By 1776, Madison had succeeded in persuading Virginia’s Revolutionary Convention to adopt the Virginia Declaration of Rights, which guaranteed for all the right to ‘‘the free exercise of religion.’’ In that same year, Virginia’s legislature suspended the collection of the compulsory taxes that had been supporting the Church of England, and in 1779 these taxes were repealed. Free exercise protections were not extended, however, to Anglican clergy, who when they were ordained in England were required to take an oath of allegiance to the Crown. The Anglican clergy who refused to violate their oaths were mobbed, beaten, and driven from their pulpits.
In 1785, Patrick Henry championed a bill that would have established Christianity as the state religion of Virginia and imposed a tax that could be directed to the Christian denomination of one’s choice (or in the alternative to support public education), but a powerful coalition of dissenters and disestablishment statesmen, led by Madison and Thomas Jefferson, was able to defeat the bill. The next year, the Virginia Statute of Religious Freedom, authored by Jefferson, was enacted. It prohibited any form of compulsory support of religion and guaranteed the rights of all to worship freely.
At the outbreak of the Revolution, nine of the thirteen colonies still had established churches. Only Virginia had, by the time of the adoption of the Establishment Clause, squarely considered and rejected the establishment of religion. Massachusetts, in the course of adopting its new Constitution in 1780, had actually strengthened its system of localized establishments, and every state but Virginia restricted the right to hold office on religious grounds. Five of these states limited public office to Protestants.
The ratification of the U.S. Constitution of 1787 put an end to religious tests for office holding. Article six provides that ‘‘no religious test shall ever be required as a Qualification to any Office or public Trust under the United States.’’ This, the only explicit religious liberty in the Constitution, was controversial due to the risk that it would allow Catholics (who it was feared might persecute Protestants if they were ever to attain a political majority) or non-Christians to hold office.
In the years after independence, leading up to the enactment of the First Amendment, many leaders became convinced that the public spiritedness of the Revolutionary era was waning. Some attributed this decline to the collapse of the established church, especially in the South. Virginia had lost half of its clergy during the Revolution, and Connecticut, one-third. In response to this concern, movements arose in nearly every state to institute or strengthen broadly inclusive religious establishments. Civic leaders looked to religion to provide an appreciation of the importance of the common good, which was seen as crucial to the success of the republican form of government.
The countervailing force was concern for religious liberty, which Madison had used as a campaign issue in defeating James Monroe for election from their Virginia district to the first U.S. House of Representatives. Virginia’s Baptists had helped Madison to get elected, and when he succeeded, they did not hesitate to remind him of their interest in religious liberty.
Upon arrival, Madison was the spokesperson for religious freedom in the first session of Congress, the session that would begin by considering more than two hundred state-sponsored proposals for amending the new Constitution. Out of these, Madison culled nineteen, and added one of his own. Initially, he planned to work these amendments into the body of the existing Constitution, rather than append them to it in the form of a bill of rights.
With respect to religious freedom, Madison began by proposing his own idea, that the states be prohibited in Article I, section 10, from violating ‘‘the equal rights of conscience.’’ With respect to the federal government, Madison proposed that to Article I, section 9, be added: ‘‘The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or under any pretext infringed.’’
When a House committee took up Madison’s proposals, some representatives were concerned that the anti-Establishment provision in the clause pertaining to the federal government might be interpreted to preclude the courts from protecting the legal rights of clergy. Others worried that the reference to ‘‘national religion’’ conflicted with the structure of the federal system. To avoid these problems, the prohibition against the establishment of a national religion, in the passive voice, was replaced by the subject ‘‘Congress,’’ in the active voice. This clarified that the provision was intended, at the time that the First Amendment was drafted, to limit the powers of the federal legislature only. (Only much later would the U.S. Supreme Court interpret the effect of the Fourteenth Amendment in terms of making the First Amendment apply to the states.) The version that then passed the House read as follows: ‘‘Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.’’
The Senate did not support Madison’s idea about prohibiting the states from violating equal rights of conscience, which effectively ended the First Congress’s consideration of that possibility. In considering the House’s proposal pertaining to the federal government, the Senate countered that Congress should be barred from establishing ‘‘articles of faith or a mode of worship,’’ rather than ‘‘religion’’ in a more general sense, apparently in an attempt to permit financial support for religion but not the endorsement of doctrine or practice. The Senate also dropped the House proposal’s final phrase, about noninfringement of the rights of conscience, presumably because the retained free exercise protection was seen as inclusive of the rights of conscience.
In conference, the House and the Senate finally agreed upon the final version of the Religion Clauses of the First Amendment that Congress passed in 1789 and the states ratified in 1791: ‘‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’’ Two key changes had been made. First, whereas the House had urged that Congress should be barred from making laws ‘‘establishing religion,’’ and the Senate, from ‘‘establishing articles of faith or a mode of worship,’’ the conference committee proposed that Congress should be prohibited from making laws ‘‘respecting an establishment of religion.’’ Financial support for religion in those states that continued to support churches with taxes would not be disturbed, nor would any other aspect of the existing state religious establishments. Congress could pass no law ‘‘respecting an establishment of religion,’’ whether at the federal or state level, whether the purpose of such a law would be to create or to dismantle it. Second, once the Senate’s references to ‘‘articles of faith’’ and ‘‘a mode of worship’’ were replaced simply with ‘‘religion,’’ the Senate’s ban on Congress ‘‘prohibiting the free exercise of religion’’ could be shortened to ‘‘prohibiting the free exercise thereof,’’ which avoided a second reference to the term ‘‘religion,’’ and thus any possibility that the second reference to religion could be interpreted as having a different meaning than the first.
By the end of the drafting process, the First Congress had developed a proposal to protect religious freedom that contained two complementary halves: the Establishment Clause, which seeks to prevent the imposition of religion by the government, and the Free Exercise Clause, which seeks to prevent governmental imposition on religion. Or as John Witte describes it in Religion and the American Constitutional Experiment, the Establishment Clause prohibits the government from prescribing religion, and the Free Exercise Clause prohibits the government from proscribing religion.
One of the primary current debates about the Establishment Clause focuses on whether it was drafted to prohibit any government support for religion, including support offered on a nonpreferential, inclusive basis, or whether it merely intended to prohibit government support for religion offered on a selective, or preferential, basis. Douglas Laycock, among others, who argue that the drafters of the Establishment Clause intended to prohibit not only governmental preference for one religion over others but also governmental aid to all religions even-handedly, point to the fact that the Senate considered but ultimately rejected four different drafts of the Establishment Clause that would have easily lent themselves to the latter interpretation. Still others, such as Michael Malbin, contend that the drafters intended to permit even-handed, nonpreferential government support for all religion by agreeing to prohibit any law respecting ‘‘an establishment of religion,’’ because hypothetically they might instead have chosen ‘‘the establishment of religion.’’ Their choice of ‘‘an’’ establishment of religion, Malbin maintains, suggests that the drafters intended to bar only selective governmental support for religion, whereas a reference to ‘‘the’’ establishment of religion would have reflected the intent to ban inclusive, even-handed governmental support.
This debate has even split the Supreme Court, as is evident in the opposing views expressed by Justice Souter, for a five-justice majority, taking the position that the drafters intended for the Establishment Clause to prohibit even-handed support for religion in general, and Justice Scalia, on behalf of four justices in dissent, taking the position that they did not so intend, in McCreary County v. American Civil Liberties Union (2005). Noah Feldman concludes that the answer to this question ‘‘seems shrouded in uncertainty,’’ due in large part to the lack of any consensus at the time regarding whether even-handed governmental support for religion violated basic principles of religious freedom. What was clear to the Framers was that governmental support for selected religious groups and not others did violate the principles that they were attempting to enshrine in the Establishment Clause.
Prior to 1940, the courts interpreted the Religion Clauses of the First Amendment to apply only to Congress, and most questions of religious liberty were left to the states to resolve under their own constitutions. By and large during the early years of the republic, state and local governments did not disturb mainstream Christian activities, but the efforts of evangelical Catholics, Baptists, and Methodists were hampered in New England; abuses against Unitarians, Adventists, and Christian Scientists were ignored in the middle colonies; and Catholics, conservative Episcopalians, and evangelical Protestants were presented with obstacles in the South. In most areas, apart from the largest eastern cities, the religious rights of Jews, Muslims, Native Americans, and enslaved African Americans were not respected. During this period, state and local governments promoted a ‘‘public’’ or civil religion that was generally Christian in character by using religious symbols and ceremonies, subsidizing religious programs, providing special legal protections to certain religious groups, promoting the teaching of basic Christian values, and prohibiting certain conduct on explicitly religious grounds.
Religious groups that could not fit comfortably within the religiously homogenous climate of the early republic were expected to leave, with the frontier providing a ‘‘release valve’’ for religious nonconformists like Mormons, Catholics, Baptists, and Methodists. In the mid- to late nineteenth century, however, the traditional Protestant homogeneity of the East was disrupted by influxes of Methodists, Baptists, and Roman Catholics along with scores of newly formed religious groups such as Disciples, Jehovah’s Witnesses, Pentecostals, Unitarians, and Universalists. These diverse groups challenged state and local policies that promoted traditional Protestantism, with the Baptists and Methodists calling for genuine separation of church and state. State and local governments responded by seeking out ways to hamper the efforts of the new groups, such as by denying charters to Catholic schools and preaching permits to Jehovah’s Witnesses. In the face of such overt discrimination, these dissenting groups turned to the federal courts for relief.
In the landmark cases of Cantwell v. Connecticut (1940) and Everson v. Board of Education (1947), the U.S. Supreme Court determined for the first time that the Religion Clauses of the First Amendment applied equally to local, state, and federal government. The Everson Court’s ruling sent the message that state and local support for the beliefs and activities of dominant religious groups would now be open to challenge.
In the wake of the Everson decision, hundreds of Establishment Clause cases poured into the lower courts. Nearly three-quarters of those that reached the Supreme Court represented challenges to prevailing patterns of state and local support for religious education. As summarized by John Witte in ‘‘From Establishment to Freedom of Public Religion,’’ this series of Supreme Court Establishment Clause rulings banned religion from the public schools, whether in the form of prayers, moments of silence, the reading of scripture, the storage of religious books, the teaching of doctrine, the display of symbols, or the use of religious services or facilities. These rulings also banned public support for religious schools, whether in the form of salaries, services, reimbursements for administering required examinations, loans of staterequired educational resources or counseling services, or tax deductions or credits for tuition costs.
By 1971, the Court had formulated a three-part Establishment Clause test to guide its decision making. As set forth in Lemon v. Kurtzman, any government action challenged under the Establishment Clause needs to satisfy three criteria. It must (1) have a secular purpose, (2) not have a primary effect that either advances or inhibits religion, and (3) not foster any excessive entanglement between government and religion. If the government’s action fails to meet any of these three criteria, under the Lemon test the Establishment Clause has been violated and the government must discontinue the offending activity.
Some members of the Supreme Court have come to question the adequacy of the Lemon test for resolving Establishment Clause disputes. In the 1984 case of Lynch v. Donnelly, Justice O’Connor offered a distinctive perspective in a concurring opinion that emphasized the impression that an ordinary citizen would have regarding the activity in question. Her perspective, now known as the ‘‘endorsement test,’’ asks whether a reasonable observer would view the government’s action as either official endorsement or disapproval of religion. Her concern was that governmental endorsement of religion might give some members of the community whose beliefs have been officially recognized the impression that they have some special civil status, or conversely, the impression that they lack such status if their beliefs have not been sanctioned. Justice O’Connor consistently applied the endorsement test to Establishment Clause cases that she helped to decide, but it has never been embraced by a majority of the justices as a replacement for the Lemon test.
Five years after Lynch, in the 1989 case of County of Allegheny v. ACLU, Justice Kennedy unveiled another challenge to the Lemon test, the ‘‘coercion test.’’ Justice Kennedy’s concern was that the Court’s contemporary Establishment Clause jurisprudence tends to manifest a certain degree of hostility toward religion, in contrast to the pattern of positive interaction between government and religion that can be observed through the course of U.S. history. To avoid undue governmental hostility toward religion, Justice Kennedy would give government a fair degree of latitude in accommodating and acknowledging religion, so long as government has not coerced someone to support or participate in religion. Justice Kennedy has continued to apply his coercion test to Establishment Clause cases, but (as with the endorsement test) the coercion test has not been embraced by a majority of justices as a replacement for the Lemon test.
Given the multiplicity of competing tests, every Establishment Clause case that reaches the Supreme Court presents an opportunity for the Court to set Lemon aside in favor of another test. Much speculation attends every Establishment Clause decision, as Supreme Court observers await a clarification of Establishment Clause jurisprudence.
When the manner in which the Court has resolved Establishment Clause cases is carefully analyzed, however, it becomes clear that the Court has never confined itself to any of these three competing Establishment Clause tests in resolving these cases. Rather, the Court has consistently, although not systematically, applied a series of questions to scrutinize the government’s conduct for Establishment Clause violations. The following paragraphs present these questions in their logical sequence, although any given Supreme Court ruling might not treat all of them, and might not do so in the same order.
The threshold Establishment Clause issue is whether a constitutionally significant governmental imposition of religion has taken place. Without such a finding, the Court need not proceed to consider the challenge any further. In considering this issue, the Court has found that not all governmental impositions of religion are constitutionally significant: the burden that allowing parents to deduct the cost of parochial education from their taxable income imposes on all other taxpayers was found to be too attenuated to be constitutionally significant in Mueller v. Allen (1983). Nor is the expression of religion by nongovernmental actors an Establishment Clause violation: the temporary placement of crosses by the Ku Klux Klan on the grounds of Ohio’s state capitol was an instance of private, not governmental, action and thus no Establishment Clause violation in Capital Square Review and Advisory Board v. Pinette (1995).
If a constitutionally significant governmental imposition of religion is found, the issue becomes whether there is a legitimate governmental purpose behind the action in question. If there is not, then government must discontinue engaging in the challenged activity. In Mueller, for example, it was legitimate for the government to grant parents of parochial school children a tax deduction to defray the parents’ educational expenses, to promote the health of private schools, and to support quality education. On the other hand, a requirement that an official prayer be read at the start of every public school day for the sake of the ‘‘moral and spiritual training’’ of the students was found not to have a legitimate Establishment Clause purpose in Engel v. Vitale (1962).
If the government is able to assert with some degree of persuasiveness that a legitimate purpose lies behind its action, the issue becomes whether the case in question arises in the special context in which there is a significant risk of governmental entanglement in the operational autonomy of religious institutions. This, the third prong of the Lemon test, justifies governmental refusal to get involved in the operation of religious institutions, for example, by exempting them from certain types of taxes to avoid the necessity of scrutinizing their internal financial records, as in Walz v. Tax Commission (1970), or due to the monitoring that would be necessary to prevent publicly funded special education teachers from teaching religion in parochial schools, as in Lemon.
Provided a case involving a constitutionally significant governmental imposition of religion and a legitimate governmental purpose does not stand to entangle government in the operational autonomy of religious institutions, a series of four questions can be employed to scrutinize the nature of the relationship between the imposition of religion and the governmental interest that has been asserted to legitimate the action. In this kind of case, if the answer to any of these four questions is ‘‘yes,’’ an Establishment Clause violation has occurred.
First, the Court can ask whether there is a clear indication that the governmental purpose that has been asserted is actually a pretext to mask other, illegitimate governmental motives. In Wallace v. Jaffree (1985), for example, Alabama’s provision for a moment of silence for ‘‘meditation or voluntary prayer’’ in the public schools, when a previous version of the statute in question had authorized only a moment for ‘‘meditation,’’ revealed the inappropriately religious motives behind the statutory change.
Second, the Court can inquire as to whether there is a lack of solid evidence regarding the existence of the problem that the government claims it is trying to solve. In Everson, in which public funding of transportation to parochial schools was challenged, the Court determined that the evidence showed that there are no alternatives to public school transportation systems that are equally safe for the children. In Texas Monthly v. Bullock (1989), by contrast, the Court found that the evidence did not support the government’s claim that it was necessary to exempt religious publications from a sales tax to avoid violating religious beliefs or inhibiting religious activity.
Third, the Court can consider whether there are adequate alternative means that would enable the government to achieve its purposes without implicating Establishment Clause concerns. To illustrate, in Everson, the Court found that there are no alternatives to publicly funded school transportation systems that are equally safe for children. In Abington Township School District v. Schempp (1963), by contrast, Justice Brennan’s concurring opinion emphasized that students can be taught morality just as effectively by studying the speeches of great Americans as they could by studying the Bible.
Fourth, the Court can ask whether the government has delegated one of its core functions to a group chosen according to a religious criterion. To illustrate, in Larkin v. Grendel’s Den (1982), the Court disallowed a statute that granted veto power over applications for liquor licenses to churches within 500 feet of an applicant’s premises. Similarly, in Kiryas Joel Village School District v. Grumet (1994), the Court ruled that the creation of a special school district to serve a village inhabited solely by members of a particular Jewish sect violated the Establishment Clause.
As the foregoing discussion reveals, the court has consistently employed a series of several different questions when resolving Establishment Clause cases that are not all reflected in the three-prong Lemon test, nor in the even more narrowly focused ‘‘endorsement’’ or ‘‘coercion’’ tests. These latter two tests focus mainly on the first threshold question that the Court has tended to ask in analyzing Establishment Clause cases: whether a constitutionally significant governmental imposition of religion has taken place. They do not incorporate the other areas of inquiry to which the Court has attended in resolving the Establishment Clause cases that have come before it. Adoption of either one of these tests, therefore, would compress the Court’s Establishment Clause analysis, limiting it to resolving these cases on the basis primarily of what has historically amounted to a threshold determination about whether a constitutionally significant governmental imposition of religion has taken place.
Since it is notoriously difficult to define ‘‘religion,’’ and since constitutional theorists continue to dispute whether the word ‘‘religion’’ as used in the Establishment Clause prohibits governmental support for religion in any form, as opposed to support for a particular religion or a subset of religious groups, exclusive reliance by the Court on the ‘‘endorsement’’ or ‘‘coercion’’ tests would leave the Court to use imprecise, disputed concepts in resolving Establishment Clause cases without the benefit of asking some of the key questions that it has used to resolve such cases in the past. The result would be that the outcome of cases would be even less predictable than it has already become, as cases are resolved based solely on whether the government has or has not done something that is ‘‘religious’’ in nature, and if so whether it has done something that is inappropriately ‘‘religious’’ or not.
DAVID T. BALL
References and Further Reading
Cases and Statutes Cited
See also Baptists in Early America