Establishment Clause
In United States law, the Establishment Clause[1] of the First Amendment to the United States Constitution, together with that Amendment's Free Exercise Clause, form the constitutional right of freedom of religion. The relevant constitutional text is:
Congress shall make no law respecting an establishment of religion...
The Establishment Clause acts as a double security, prohibiting both religious abuse of government and political control of religion.[2] By it, the federal government of the United States and, by later extension, the governments of all U.S. states and U.S. territories, are prohibited from establishing or sponsoring religion.[2]
The clause was based on a number of precedents, including the Constitutions of Clarendon, the Bill of Rights 1689, and the Pennsylvania and New Jersey colonial constitutions. An initial draft by John Dickinson was prepared in conjunction with his drafting the Articles of Confederation. In 1789, then-congressman James Madison prepared another draft which, after discussion and debate in the First Congress, would become part of the text of the First Amendment of the Bill of Rights. The Establishment Clause is complemented by the Free Exercise Clause, which allows individual citizens freedom from governmental interference in both private and public religious affairs.
The Establishment Clause is a limitation placed upon the United States Congress preventing it from passing legislation establishing an official religion, and by interpretation making it illegal for the government to promote theocracy or promote a specific religion with taxes. The Free Exercise Clause prohibits the government from preventing the free exercise of religion. While the Establishment Clause prohibits Congress from preferring one religion over another, it does not prohibit the government's involvement with religion to make accommodations for religious observances and practices in order to achieve the purposes of the Free Exercise Clause.
Historical background
Constitutions of Clarendon
The Constitutions of Clarendon, a 12th-century English law, had prohibited criminal defendants' using religious laws (at that time, in medieval England, canon law of the Catholic Church) to seek exemption from criminal prosecution.
1689 Bill of Rights
The
Colonial New Jersey and Pennsylvania Constitutions
The original
Virginia Statute for Religious Freedom
A possible additional precursor of the Free Exercise Clause was the Virginia Statute for Religious Freedom. The statute was drafted by
United States Bill of Rights
The First Amendment is part of a group of 10 Amendments to the United States Constitution known as the Bill of Rights. The idea of adding a Bill of Rights to the Constitution was proposed by
Concerns of Virginia Baptists
The Establishment Clause addressed the concerns of members of minority faiths who did not want the federal government to establish a
Incorporation
Prior to the enactment of the
Incorporation of the Establishment Clause in 1947[13] proved to be problematic in several ways and subject to critique.[12][14][15][16][17] The controversy concerning Establishment Clause incorporation results primarily 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)[18] – a fact conceded by even those members of the Court who believe the Establishment Clause was made applicable to the states through incorporation.[19] Critics, such as Clarence Thomas, 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),[18][20] does not purport to protect individual rights.[18]
Financial assistance
Prior to American independence, most of the original colonies supported religious activities with taxes, with several colonies choosing a single church as its official religion. These official churches enjoyed privileges not granted to other religious groups.
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.
During 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 monies from religious teaching, the leading case being the 1951
The Jefferson quotation cited in Black's opinion is from a
In
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
Further important decisions came in the 1960s, during the
In
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.[25]
The 1990s were marked by controversies surrounding religion's role in public affairs. In
In 2002, controversy centered on a ruling by the
Religious displays
The inclusion of religious symbols in public holiday displays came before the Supreme Court in
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,
Blue laws
In the 1964 case
Establishment Clause for the states dispute
Clarence Thomas justice of the Supreme Court of the United States, has disputed that the Establishment Clause applies to the states, thereby making it possible for the states to establish a state religion.[29][30][31][32]
In 2013, North Carolina politicians proposed a bill that could have seen North Carolina Establish an Official Religion for the State.[33][34]
An 2013 YouGov poll found that 34% of people would favor establishing Christianity as the official state religion in their own state, 47% would be opposed and 19% were undecided.[35]
See also
- Faith-based initiatives
- Lassonde v. Pleasanton Unified School District
- No Religious Test Clause
- Section 116 of the Constitution of Australia
- Separation of church and state in the United States
- Torcaso v. Watkins
- United States religious history
References
- ^ "Religious liberty in public life: Establishment Clause overview". First Amendment Center. Archived from the original on September 5, 2010. Retrieved May 28, 2020.
- ^ a b Charles C. Haynes (Director Religious Freedom Education Project) (December 26, 2002). "History of Religious Liberty in America. Written for Civitas: A Framework for Civic Educatio (1991) by the Council for the Advancement of Citizenship and the Center for Civic Education". Archived from the original on May 25, 2020. Retrieved May 25, 2020.
- ^ "Act for Establishing Religious Freedom, January 16, 1786". Shaping the Constitution. Virginia Memory.
- ^ ISBN 0199740992.
- ^ Bruns, Roger A. "A More Perfect Union: The Creation of the U.S. Constitution". Retrieved July 17, 2010.
- SSRN 1262520. See p. 764, footnote 147, which presents a quote from a copy of Leland's letter (as quoted in an article by L.H. Butterfield): "Sir, According to your Request, I have sent you my objections to the Foederal Constitution, which are as follows. . . .".
- SSRN 1262520.
- SSRN 1262520. Scarberry states on pp. 775-6: "At the very least, it seems probable that Madison met with Leland before the election and persuaded Leland to support Madison's candidacy, which otherwise likely would have failed."
- ISBN 978-0-674-01374-2.
- ^ Cantwell v. Connecticut, 310 U.S. 296 (1940)
- ^ Palko v. Connecticut, 302 U.S. 319, 326 (1937)
- ^ ISBN 073550718X.
- ^ Everson v. Board of Education, 330 U.S. 1 (1947)
- 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.")
- ^ Lietzau, William K. (1990). "Rediscovering the Establishment Clause: Federalism and the Rollback of Incorporation". DePaul L. Rev. 39 (1191).
- ^ Smith, Stephen D. (1995). "Chapter 2: The Jurisdictional Character of the Religion Clauses". Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom. Oxford University Press.
- ^ 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.")
- ^ S2CID 151387692.
- ^ Abington v. Schempp, 374 U.S. 203 (1963) (Brennan, J., concurring)
- ^ Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004) (Thomas, J., concurring).
- ^ a b "Public Funding of Religious Activity in 18th-Century America". www.pewforum.org. May 14, 2009. Retrieved October 25, 2020.
- ISBN 9780874517286.
- ISBN 9780313230905.
- ^ Pfeffer, Leo (1967) Church, state, and freedom Beacon Press, Boston, Massachusetts, pages 545-549
- ^ But see Bown v. Gwinnett County School District, 112 F.3d 1464 (11th Cir. 1997).
- ^ "Town of Greece v. Galloway: A deep dive". The Oyez Project at IIT Chicago-Kent College of Law. Retrieved May 9, 2014.
- ^ For the Endorsement test see Lynch v. Donnelly, 465 U.S. 668 (1984).
- ^ "McGowan v. Maryland". Oyez. Retrieved April 19, 2018.
- ^ Bravin, Jess. "State Churches? Justice Clarence Thomas Hears the Call". WSJ.
- ^ "Opinion: In prayer case, Supreme Court Justice Clarence Thomas proves critics wrong". Los Angeles Times. May 6, 2014.
- ^ "Does the Establishment Clause Apply to the States?". May 7, 2014.
- ^ "Clarence Thomas".
- ^ "GOP Lawmakers Propose Official State Religion". HuffPost. April 3, 2013. Retrieved August 3, 2023.
- ^ "Next stage in the culture war: official state religions". NBC News. April 3, 2013. Retrieved August 3, 2023.
- ^ "Poll: Huge Number of Americans Want Christianity as State Religion". April 6, 2013.
- Marnell, William, H. (1964). The First Amendment: Religious Freedom in America from Colonial Days to The School Prayer Controversy. Doubleday & Company.
{{cite book}}
: CS1 maint: multiple names: authors list (link)
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 Archived December 9, 2010, at the Wayback Machine
- Religious Expression in American Public Life: A Joint Statement of Current Law
Further reading
- Dreisbach, Daniel L. (September 2002). Thomas Jefferson and the Wall of Separation Between Church and State. New York University Press. ISBN 978-0-8147-1935-0.
- Royal C. Gilkey, "The Problem of Church and State in Terms of the Nonestablishment and Free Exercise of Religion", William & Mary Law Review, Vol. 9, Issue I, 1967, 149-165
- 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" (PDF). Penn State Law Review. 113 (3): 733–800.
- Stone, Geoffrey R. (2008). "The World of the Framers: A Christian Nation?". UCLA L. Rev. 56 (1).
- Tillman, Seth Barrett (2009). "Blushing Our Way Past Historical Fact And Fiction: A Response to Professor Geoffrey R. Stone's Melville B. Nimmer Memorial Lecture and Essay". Penn St. L. Rev. 114 (391). SSRN 1333576.
- 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.