Framing the Religion Clauses…First Things FirstDerek H. Davis May/June 2019
In 1902 religious historian Sanford Cobb called religious liberty “America’s great gift to civilization and the world.” Indeed, religious liberty stands as one of our nation’s bedrock principles. Yet, seemingly, it is always under siege--by those who fail to appreciate the complex thinking of the American founding fathers that caused them to write into the Constitution the principle that guarantees religious liberty: the separation of church and state.
The separation of church and state is blamed today by some for many things: the “unprecedented moral decline,” the shootings at Columbine High School and other schools around the country, “rampant secularism,” the spread of “cults and false religions,” greed and materialism--even “God’s judgment” against the United States, resulting in the 9/11 terrorist attacks.
To remedy the so-called evils of the separation of church and state, some today attempt to re-write history, to tell us that the principle has been widely misunderstood and overapplied. They suggest that the separation idea was only a political philosophy popular among a few radical founding fathers, or that it was devised for expedience only—the inevitable result of religious pluralism in the new nation. Most often we hear that the principle originally prohibited only the establishment of one religion over others, not the advancement of religion by government, if performed without discrimination against any particular religion.
These critics suggest, for example, that there is no constitutional prohibition to prayer in public schools, provided we hear everyone’s prayer; that we can help solve the moral decline with a program of nondiscriminatory government funding of churches and other religious groups to administer social programs and religious schools; and that we can post the Ten Commandments and other sacred texts that most Americans agree with in public schools, courtrooms, and other government buildings.
Of course one rarely hears these suggestions from members of religious minorities. This is because on the basis of virtually every poll, at least 80-85% of Americans still identify themselves as Christians; thus minorities believe that allowing government to actively support religion will only result in the public sector being bathed in a certain style of Christian prayer, language, programs, activities, symbols, and messages. They fear being crushed under the weight of Christian majoritarianism—in a country where they are supposed to be “equal” in the eyes of government.
The Basic Debate
The controversy over the meaning of the separation of church and state begins with the religion clauses of the First Amendment to the U. S. Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Establishment Clause was clearly intended to eliminate the possibility of an established church (as, e.g., the Church of England was established in mother England) in the new nation; beyond that, agreement among scholars as to the framers’ intent ceases. The Free Exercise Clause generally was intended to preserve the right of the citizen to believe, following John Locke, “according to the dictates of his own conscience,” free from civil coercion.
Much of the contemporary debate over the framers’ intent in the wording of the religion clauses focuses on the Establishment Clause. This is because some of the key issues in American society today focus upon the degree of permissible government sponsorship, promotion, advancement, or support of religious activities; and it is accepted by all that the term “establishment” as contained in the Establishment Clause bears most directly upon these issues.
The two basic interpretations of what the constitutional framers intended the Establishment Clause to mean are the “separationist” position and the “accommodationist” position. The separationist interpretation was first advanced judicially by Justice Hugo Black for a five-to-four majority in the 1947 landmark case of Everson v. Board of Education, where he wrote, “In the words of Jefferson, the clause against establishment of religion by laws was intended to erect “a wall of separation between church and State.” Elaborating further, the Court declared that the original purpose of the Establishment Clause was to create a significant separation of the spheres of civil authority and religious activity by forbidding all forms of government assistance for religion. That is, the clause went far beyond merely prohibiting the governmental establishment of a single church or of preferring one religious sect over another.
By contrast, the accommodationist view generally holds that the framers intended for the Establishment Clause to prevent only governmental establishment of a single sect or denomination of religion over others. Sometimes called “nonpreferentialists,” proponents of this view permit governmental aid to religious institutions as long as it prefers no particular group or sect. Accommodationists hold that the wall of separation between church and state was not intended to create a sharp division between government and religion or to enjoin government from fostering religion in general.
The arguments of both positions have their strengths and weaknesses. The surviving data of the founding period, especially the debates of the founding fathers in formal session, as well as the records of the states’ ratification proceedings, are regrettably inadequate in their treatment of the subject and certainly leave room for more than one interpretation. Nevertheless, it is submitted that upon close examination of the deliberation process engaged in by the drafters of the religion clauses, at least an approximation of their intent can be ascertained.
The First Congress and the Emergence of the Religion Clauses
James Madison had been among those who argued that a bill of rights was unnecessary. He insisted that the national government had no power to infringe upon individual rights. However, he soon came to appreciate the honest fears of the delegates to the state conventions, who insisted upon a clear prohibition of federal infringement upon the rights of conscience as well as other individual liberties. It was largely on the basis of his assurances that he would seek to secure before the First Congress the kinds of amendments wanted by most of the states willing to ratify the Constitution.
After the Constitution was ratified, Madison, feeling “bound in honor” to secure amendments, was true to his word and offered a number of proposed amendments to the First Congress. On 8 June 1789, at the opening of the First Congress, Representative Madison proposed, among others, the following amendment: “The civil rights of none shall be abridged on account of religious belief, nor shall any national religion be established, nor shall the full and equal rights of conscience in any manner or in any respect be infringed.”
As stated earlier, most of the controversies about church-state separation in the United States revolve around the Establishment Clause. While every proposed wording of the religion clauses differentiated establishment issues from free exercise and other issues, due to space limitations only the establishment issues will be addressed here. Accommodationists claim that the word “national” in Madison’s proposal is proof that Madison intended nothing more than a prohibition against the preference of one religion over another. Yet a number of facts suggest that Madison might have opposed more than just the establishment of a national church.
Madison had led a fight in 1785 in the Virginia legislature against a bill calling for a general tax assessment for the support of not one but of all Christian religions. In his renowned “Memorial and Remonstrance,” Madison repeatedly referred to the assessment bill as an “establishment of religion.” After his retirement from the presidency, Madison in 1817 expressed his disapproval of tax-supported chaplains for Congress and the armed services as well as presidential proclamations of days of thanksgiving. Significantly,he described these as “establishments” and “the establishment of national religion.” All of this makes it difficult to know conclusively what Madison meant when he submitted his proposed amendment prohibiting the “establishment” of a “national religion.” He may have been signifying not that the federal government had no business preferring one church or religion over others but that national action on behalf of any or all churches or religions was outside the purview of permissible government action.
Proposal # 2
Madison’s proposed amendment was referred to a specially formed select committee, of which Madison was a member. The committee changed the wording of the amendment proposal several times but eventually settled on the following language: “No religion shall be established by law, nor shall the equal rights of conscience be infringed.”
Debate on the Select Committee’s proposed amendment opened on 15 August 1789. Peter Sylvester, a fifty-year-old lawyer from New York, opened the debate and focused on the establishment question. He feared that the clause “might be thought to have a tendency to abolish religion altogether.” Sylvester apparently thought that the proposed amendment might be construed by the American people as a total ban on religion. If that was the essence of Sylvester’s thinking, he was less concerned with the issue of governmental aid to religion than the larger issue of the very survival of religion. In that case, he would merely be asking for a rephrasing of the amendment; his comment would say nothing about his views on establishment.
Proposal # 3
The third proposal was submitted by Samuel Livermore of New Hampshire on 15 August: “Congress shall make no laws touching religion, or infringing the rights of conscience.” This proposal has a decidedly separationist flavor and seems to be a reaction to possible nonpreferentialist notions among certain other committee members. Congress’s inability to pass any laws “touching” religion would arguably foreclose any kind of law that would benefit or sponsor religious projects or institutions. But the language was apparently unsatisfactory, thus the House committee entertained additional proposals.
Proposal # 4
Five days later Fisher Ames from Massachusetts submitted this language for consideration: “Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.” This language is softer, perhaps intending to remove the concern that Livermore’s proposal might be far too restrictive. But does the language disallow anything more than the establishment of a national church? It depends on the meaning of “establishment.” Ames likely was giving “establishment” a broad meaning in which any form of government aid to religion would be an establishment; otherwise he would have used decidedly better wording that would clearly permit nondiscriminatory aid to religion.
The next day, 21 August, the committee made some stylistic changes, producing this draft: “Congress shall make no law establishing religion, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.” Like the previous draft, there is contemplated here far more than the prohibition of a national church or the preference of some religions over others; thus the separationist perspective seems to be in view. Without debate, this fifth proposal was adopted by the necessary two-thirds of the House. The amendment was submitted to the Senate.
The Senate began deliberations on the House amendment on 3 September and continued through 9 September. The Ames amendment must have provoked controversy in the Senate, since several alternative versions were suggested in its place. In considering the House’s draft, a Senate motion was first made to strike out “religion, or prohibiting the free exercise thereof,” and to insert, “one religious sect or society in preference to others.” The motion was rejected, and then passed. Thus, the first new Senate version read: “Congress shall make no law establishing one religious sect or society in preference to others, nor shall the rights of conscience be infringed.” The Establishment Clause in this proposal appears to revert to a nonpreferentialist perspective.
After further debate, the Senate rejected this alternative wording: “Congress shall not make any law, infringing the rights of conscience, or establishing any Religious Sect or Society.” This language is similar to the sixth proposal, and the establishment language reflects at most a stylistic alteration, presumably on the basis that the words “in preference to others” were deemed unnecessary. But clearly, nonpreferentialism is the aim.
The Senate then considered but rejected language providing: “Congress shall make no law establishing any particular denomination of religion in preference to another, or prohibiting free exercise thereof, nor shall the rights of conscience be infringed.” This is essentially a return to the language of the sixth proposal, except that the prohibition is now against establishing “any particular denomination of religion” as opposed to a “religious sect or society.” The proposal nevertheless still favors a nonpreferentialist perspective.
Considerable disagreement exists among church-state scholars as to the meaning which should be given these Senate drafts. For example, Levy, as well as Douglas Laycock, argues that all of these drafts favored the “no preference” viewpoint, but all were rejected because the Senate clearly wanted a wording favoring the broad interpretation of the Establishment Clause. Laycock comments: “At the very least, these three drafts show that if the First Congress intended to forbid only preferential establishments, its failure to do so explicitly was not for want of acceptable wording. The Senate had before it three very clear and felicitous ways of making the point.” Gerard Bradley, however, holding to the narrow interpretation, seems to suggest that the rejected versions all were aimed only at prohibiting a national church.
Later the same day, 3 September, the Senate adopted a draft that treated religion more generically: “Congress shall make no law establishing religion, or prohibiting the free exercise thereof.” This proposal is especially interesting because it abandons nonpreferentialist language in favor of more separationist language. The committee must have been dissatisfied with the limited meaning of the Establishment Clause offered in the previous proposals.
Six days later, 9 September, the Senate again changed its mind and adopted, as its final form of the amendment: “Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion.” Like the first three Senate drafts, however, this proposal has the unmistakable meaning of prohibiting acts that prefer one church or sect over others––clearly a narrow intent.
The Senate version of the amendment was then sent to the House, which rejected it. This action indicates, in all likelihood, that the House was not satisfied with merely a ban on the preference of one church or sect over another--clearly, a broad intent.
Proposal #11: The Religion Clauses Emerge
A House-Senate joint conference committee was created to resolve the disagreement over the religion amendment. A compromise amendment was eventually agreed upon on 25 September and passed by both branches: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
The joint committee left no records of its deliberations, but the congressional action was completed. The religion clauses, comprising a mere sixteen words, had been approved. What are we to make of this final language? At best we can say that it reflects considerable disagreements over what the religion clauses were intended to achieve. The final wording reflects a compromise, but clearly reverts to the more separationist language that dominated the House proposals. One thing is clear: the no preference understanding of the Establishment Clause was rejected. We may not be able to state precisely what the Establishment Clause means, but the committees had language, no less than five times (proposals 1, 6, 7, 8, and 10), that favored a nonpreferentialist perspective, but five times it was rejected. Whatever the merits of the no preference perspective, it is enlightening to know that it was so closely considered, yet so frequently rejected.
The religion clauses, with other amendments, were submitted to the thirteen state legislations for ratification. Much to the disappointment of students of American constitutional law, there are no surviving records of the states’ debates. By June of 1790, the necessary nine states had approved of ten amendments--the Constitution’s Bill of Rights.
The Search for Meaning
It is unfortunate that in all of the developmental process, the framers left a paucity of records of the debates in Congress and the state ratifying conventions. Regarding the debates of the First Congress, Leonard Levy states: “Not even Madison himself, dutifully carrying out his pledge to secure amendments, seems to have troubled to do more than was necessary to get something adopted in order to satisfy popular clamor and deflate anti-federalist charges.”
Despite the absence of perspicuous meanings in the religion clauses, it is submitted here that what we know of the process indicates at least a leaning toward a broad, separationist interpretation of the Establishment Clause rather than a narrow, nonpreferentialist perspective. That the drafters of the religion clauses had five opportunities to endorse nonpreferentialist language, but five times rejected it, is instructive to say the least.
The separation of church and state advanced by the Founders resulted from the religious pluralism that was an outgrowth of the Reformation and the accompanying recognition that religion is perhaps more a matter of private conscience than public concern. The atrocities of the Middle Ages and the Reformation period and thereafter, in which hundreds of thousands died in inquisitions, witch-hunts, and religious wars were thought to be the result of government having too much authority in matters of religion.
America was the first nation to construct a constitutional framework that officially sanctioned the separation of church and state. It was a noble experiment in the founding era and remains so today. The experiment was undertaken by the framers in the hope that it would enable America to escape the persecutions and religious wars that had characterized the Christian West since the emperor Theodosius made Christianity the Roman Empire’s official religion in 380 A.D. The result has been a formal American commitment to the twin pillars of freedom—religious liberty and the separation of church and state.