History and Its Role in Supreme Court Decision Making on Religion

‘‘No provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment,’’ wrote Justice Wiley Rutledge at the outset of the Supreme Court’s Establishment Clause jurisprudence, Everson v. Board of Education (1947). Since Everson, Supreme Court justices have continued to rely heavily on the history of the early republic to interpret both the establishment and free exercise clauses of the First Amendment. Those justices upholding strict separation and those favoring greater Accommodation of Religion have used history in markedly different ways, however. Their opinions in religion cases have thus carried on a sophisticated debate about the proper use of history in constitutional interpretation in general.

The Court has drawn on three main sources of historical documentation in interpreting the Religion Clauses: (1) the personal views of founding era statesmen regarding the relationship between the state and religion, (2) the practices of federal and state governments at the time of ratification of the First Amendment, and (3) the textual development of the clauses as reflected in their legislative histories and the common use of their terms in Colonial Charters and early state constitutions.

Personal Views of Early Statesmen

Following the first free exercise decision, Reynolds v. United States (1879), the Everson Court located the ‘‘generating history’’ of the religion clause in the Virginia Assessment Controversy of 1785–1786. But Everson went further, relying on the ideological expressions of selected statesmen involved to interpret the motivations behind the Religion Clause. Supporters of both strict separation and expansive accommodation have repeatedly returned to this episode, in part because it inspired a monumental treatise on religious freedom by the chief architect of the First Amendment—James Madison’s ‘‘Memorial and Remonstrance Against Religious Assessments’’—and in part because its temporal proximity to the Constitutional Convention seemed to give it greater relevance to constitutional interpretation. Protesting a bill to tax citizens for the support of a church of their choice or a general fund for clerical education, Madison articulated the sectarian churches’ position and called on the Virginia legislature to abandon all church taxes. The legislature was convinced and adopted a ‘‘Bill for Establishing Religious Freedom,’’ based on an earlier draft by Thomas Jefferson, which soon led to the disestablishment of the state church.

Although the Everson Court ultimately ruled according to a theory of government neutrality toward religious institutions, both the majority and dissent enunciated a rationale for strict separation by expanding on Jefferson’s characterization of the Establishment Clause as a ‘‘wall of separation between church and state.’’ Jefferson had penned these words in a letter to the Danbury Baptist Association in 1802, but the Court believed the metaphor to be consistent with the result of the Virginia controversy. Noting that Madison and Jefferson ‘‘played such leading roles’’ in the ‘‘drafting and adoption’’ of the First Amendment, the Court offered citations from their writings as evidence for both the historical ‘‘context’’ and modern meaning of the religion clause.

Critics of Everson’s separationist theory, which gained ascendancy over the following generation, objected that historical evidence ought to be more rigorously tied to the ratification of the First Amendment or to the fact patterns of each particular case at hand. They pointed out that Jefferson’s opinions about the meaning of the First Amendment had only a tenuous relationship to constitutional interpretation because Jefferson himself did not take part in the drafting or adoption of the Bill of Rights. To the extent that Jefferson’s opinions were germane, the critics also questioned why his private correspondence should receive greater credence than his public comments or official acts that allowed for practices now banned by the Court’s ‘‘wall of separation.’’ Madison, on the other hand, was a central player in the passage of the First Amendment, but his own proposed wording for the religion clause did not secure Congress’s full approval. It therefore seemed presumptive to ascribe to the First Congress and the states’ ratifying chambers the views Madison had expressed during an earlier controversy in a single state.

Policies of Early Governments

Accomodationists argued that it would be more appropriate to reconstruct the import of the First Amendment by evaluating the official actions of founding leaders while they served in governmental positions. Implicit in this emphasis was a theory that official acts should be given greater interpretative weight because they represent not just the personal conviction of one individual, but the result of the entire government’s democratic deliberation. It also treated early office holders as interpreters of the Constitution, by which their acts, if legally unchallenged, could indicate ‘‘long-standing practice’’ or serve as instructive democratic precedents in the absence of judicial ones.

Justice Stanley Reed presented the first challenge to the separationists’ use of history in his dissent from McCollum v. Board of Education (1948), which barred public schools from offering ‘‘released time’’ for optional religious instruction. While Madison’s ‘‘Remonstrance’’ concerned taxation, a more precise inquiry into public school practices revealed that Jefferson himself had designed a similar program to facilitate student worship when he was rector of the University of Virginia and Madison was a trustee. In the succession of cases banning Bible reading and prayer at public school events, religious symbols on public property, and various forms of aid to religious schools, dissenters quoted many presidents calling the country to prayer in their inaugural ceremonies and Thanksgiving Day proclamations in order to demonstrate the longstanding place of religious commemorations in the civic life of the nation. They also provided evidence that the federal government regularly allocated funds in the nineteenth century to support church schools among the Native Americans.

Faced with these challenges, justices favoring stricter separation reached back further into history, conjuring up the religious strife and persecution of sectarians in Europe that brought many settlers to America’s shores. It was the overarching purpose of the First Amendment to avoid these social evils, they argued, in decisions such as Engle v. Vitale (1962) and Abington v. Schempp (1963). Thus, the religion clause was to be interpreted in light of possible discrimination in contemporary society, not merely in light of the nation’s early political consensus.

Accomodationists, however, insisted that historical anecdotes should only be instructive if they hew closely to the factual patterns under review. When Locke v. Davey (2004) permitted a state to exclude a student of theology from an otherwise unrestricted college scholarship program after citing Virginia’s resolution to the assessment controversy, Justice Scalia contested that the scope of Madison’s argument must be limited to the case that was at hand: Madison convinced the Virginia legislature to abandon a state support program specifically allocated for clerical education, but the Virginians still might have considered it a denial of free exercise to exclude only clergy from generally available state assistance.

Emphasis on governmental policies in the founding era also allowed the Court to take the practices of the states and federal government more systematically into its purview. Walz v. Tax Commission (1970), for example, declined to invalidate tax exemptions for religious groups after acknowledging that most states and the federal government had granted such exemptions as soon as they established tax codes.

Marsh v. Chambers (1983) rested its decision to allow legislative prayer on evidence that the Constitutional Convention and First Congress themselves convened with prayer, a practice emulated by the states. Because the First Congress passed a bill providing for chaplains to open all legislative sessions with prayer just three days before the House resolved the final wording for the First Amendment, the Court reasoned that the authors of the Establishment Clause could not have intended it to ban prayer from government assemblies.

Critics of this approach have claimed that even the First Congress and early presidents should not be trusted to have consistently abided by the constitutional clauses they authored. But for the Marsh majority, the close convergence of relevant legislation with the passage of the First Amendment created a moment when deference to the legislature’s capacity for constitutional interpretation ought to be at its height.

Legislative Histories and Textual Comparisons

More recently, several justices have advocated a thorough revision of the Court’s objective in religion cases after considering the legislative history of the First Amendment and the significance of its terms in other legal documents from the eighteenth century.

Although Madison had been characterized as an absolute separationist since Everson, the House report for the First Congress showed that his proposed language for the religion clause would have prohibited the establishment of only a ‘‘national religion.’’ An early Senate version, meanwhile, barred only the preference of one sect over another. At the state level, Virginia’s conclusions about the proper relation between church and state were not universally accepted. Three New England states maintained established state churches for decades after ratifying the First Amendment. Justice Rehnquist concluded from this evidence that those legislators who ratified the Establishment Clause understood it to bar only the federal government from officially advancing one church over another or from interfering with state church establishments. Insofar as the religion clause had been incorporated by the Fourteenth Amendment, he argued in his Wallace v. Jaffree (1985) dissent, all governments had the responsibility to refrain from advancing one religion over another, but they were not bound to remain neutral between religion and irreligion.

Defenders of the Court’s ‘‘neutrality’’ jurisprudence countered this revisionist history of the Establishment Clause in Lee v. Weisman (1982) by arguing that since Congress did not settle on either Madison’s or the Senate’s version, the First Amendment must have been meant to prohibit governmental advancement of ‘‘religion’’ in general. But since the only documented reasons for rejecting Madison’s language were even stronger reservations about protecting the prerogatives of the states, the Wallace dissenters maintained that Madison’s intention was implicit in the final result.

Like Rehnquist’s ‘‘non-preferentialism,’’ the ‘‘noncoercion’’ standard that Justice Kennedy advanced in County of Allegheny v. ACLU (1989) would have abandoned attempts to divine a line between the secular and religious. Instead, guided by Madison’s interpretation of the religion clause during the House debate, the Court would simply ensure that government not ‘‘compel men to worship God in any manner contrary to their conscience.’’ When Justice Kennedy included peer pressure as a form of coercion to ban prayer at public school events, however, Justices Scalia and Thomas argued that a historically accurate conception of compulsion necessarily included the ‘‘force of law and the threat of penalty.’’

After Employment Division v. Smith (1990) limited the meaning of the free exercise clause to a protection against racial discrimination, proponents of greater accommodation called for reconsideration on the basis of a comparative reading of the First Amendment with ‘‘free exercise’’ clauses in Colonial Charters and state constitutions. Justice O’Connor’s dissent in City of Boerne v. Flores (1997) marshaled the state provisions behind an argument that the state ratifying chambers and congressional representatives would have understood ‘‘free exercise’’ to exempt religiously motivated conduct or scruples from generally applicable laws. Noting that many state constitutions included provisos limiting free exercise when the conduct disturbed the ‘‘public peace or safety,’’ the accommodationists reasoned that these provisos would have been unnecessary unless the concept of ‘‘free exercise’’ already embraced exemptions from generally applicable regulations. But the majority, basing its position on Reynolds, refused to consider that the state provisions could have determined the meaning of the term ‘‘free exercise’’ for the First Amendment. Justice Scalia, the author of Smith, contended that the states’ free exercise clauses proved only that religious exemptions were permissible, not mandated.

Religion cases have inspired Supreme Court justices to apply more and more refined historical analyses to the constitutional questions that they have faced since Reynolds and Everson. It is apparent, however, that those opinions challenging the doctrine of Reynolds and Everson on historical grounds have rarely garnered a majority. Although the Court finds history a ready rhetorical aid for its decisions, history is seldom dispositive. When historical evidence from the Founding Era is in conflict with intervening judicial precedents, a persistent majority in religion cases has shown that the Court prefers to place authority in its own precedents, maintaining its freedom to adapt to contemporary situations.

HANS LEAMAN

References and Further Reading

• Hamburger, Philip, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 George Washington Law Review 1992: 915–48.
• ———. Separation of Church and State. Cambridge, MA: Harvard University Press, 2002.
• Howe, Mark DeWolfe. The Garden and the Wilderness: Religion and Government in American Constitutional History. Chicago: University of Chicago Press, 1965.
• McConnell, Michael, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harvard Law Review (1990): 1409–517.
• Witte, John, Jr. Religion and the American Constitutional Experiment: Essential Rights and Liberties. 2nd ed. Boulder, CO: Westview Press, 2005.

Cases and Statutes Cited

• Abington Township School District v. Schempp, 374 U.S. 203 (1963)
• City of Boerne v. Flores, 521 U.S. 507 (1997)
• County of Allegheny v. A.C.L.U., 492 U.S. 573 (1989)
• Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990)
• Engle v. Vitale, 370 U.S. 421 (1962)
• Everson v. Board of Education of the Township of Ewing, 330 U.S. 1 (1947)
• Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203 (1948)
• Lee v. Weisman, 505 U.S. 577 (1992)
• Locke v. Davey, 540 U.S. 712 (2004)
• Marsh v. Chambers, 463 U.S. 783 (1983)
• Reynolds v. United States, 98 U.S. 145 (1879)
• Wallace v. Jaffree, 472 U.S. 38 (1985)
• Walz v. Tax Commission of the City of New York, 397 U.S. 664 (1970)

See also Concept of ‘‘Christian Nation’’ in American Jurisprudence; Establishment Clause (I): History, Background, Framing; Free Exercise Clause (I): History, Background, Framing; Judicial Proceedings and References to the Deity; Religion in ‘‘Public Square’’ Debate; Religious Liberty under Eighteenth-Century State Constitutions