Hear Ye! Hear Ye!

Albert J. Menendez July/August 1999 The debate over these ten simple words--"Congress shall make no law respecting an establishment of religion"--has been a relatively recent development. For the first century and a half after the Establishment Clause was written, there were few arguments over it. By the time the furious debates began, all those who either framed the clause or ratified it were long dead.

Thus, since the Framers aren't here to explain it, the courts (which, after all, were established to interpret the law) have to, and here is, basically, what they have said regarding this crucial principle of religious freedom.

As early as 1872, in Watson v. Jones, a U.S. Supreme Court majority had written, "The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasion of the civil authority."[1]

Several state courts echoed the sentiments even before the Supreme Court applied the doctrine uniformly to the states. In 1918 the Iowa Supreme Court held, "If there is any one thing which is well settled in the policies and purposes of the American people as a whole, it is the fixed and unalterable determination that there shall be an absolute and unequivocal separation of church and state."[2]

A similar judgment was reached by New York State's highest court, which ruled, "In all civil affairs there had been a complete separation of church and state jealously guarded and unflinchingly maintained."[3]

Most states began to emulate the federal Constitution in regard to religious free exercise, separation of church and state and bans on religious tests. Some states went beyond the federal provisions and enjoined even more far-reaching measures to guarantee freedom of conscience and to ensure religious neutrality by the state. The U.S. Supreme Court, through the Incorporation Doctrine of the Fourteenth Amendment, first applied the Free Exercise Clause to the states in 1940 (Cantwell v. Connecticut) and the Establishment Clause in 1947 (Everson v. Board of Education).

When the First Amendment proclaimed, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," it enunciated a far-ranging philosophy of government. Religious Rightists wrongly argue that the amendment was designed to prevent the adoption of a national church only, that the amendment applies solely to preventing governmental interference in religion, and that government can aid all religions on a nonpreferential basis. History shows that this position is false; the courts, fortunately for America, have not accepted it either.

In fact, in 1971 the High Court enunciated a three-part test in Lemon v. Kurtzman.[4] To pass constitutional scrutiny, legislation had to have a secular purpose, could not advance or inhibit religion, and could not result in "excessive entanglement" between church and state. It was the Lemon test that invalidated many attempts by lawmakers to subsidize church related elementary and secondary education. And the test has also been applied to many questions surrounding religious activities in public education and disputes involving religious symbolism on public property.

There are other aspects of Establishment doctrine that are relevant. Justice William O. Douglas noted that "the First Amendment does not select any one group or any one type of religion for preferred treatment."[5] Justice Douglas argued that the Founders "fashioned a charter of government which envisaged the widest possible toleration of conflicting [religious] views."[6] Furthermore, government cannot "suppress real or imagined attacks upon a particular religious doctrine,"[7] nor can it have any "interest in theology or ritual."[8]

Government may not prefer religion or religious persons over those who profess no religion. Justice Hugo L. Black wrote: "We repeat again and again reaffirm that neither a state nor the federal government can constitutionally force a person 'to profess a belief or disbelief in any religion.' Neither can constitutionally pass laws or impose requirements which aid all religions as against nonbelievers, and neither can aid religions based on a belief in the existence of God as against those religions founded on different beliefs."[9]

Government may not "compose official prayers for any group of the American people to recite as part of a religious program carried on by government."[10]

Justice William J. Brennan affirmed, "The State must be steadfastly neutral in all matters of faith, and neither favor nor inhibit religion."[11]

The state may not "require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma,"[12] according to Justice Abe Fortas. In the same case Fortas also observed: "Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of no religion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion."[13]

Churches are "excluded from the affairs of government,"[14] said Chief Justice Warren E. Burger, and "important, discretion-ary governmental powers" may not be "delegated to or shared with religious institutions."[15]

Government may not "foster a close identification of its powers and responsibilities with those of any or all religious denominations, "[16] said Justice William J. Brennan. Justice Brennan also noted that it is forbidden for legislation "to employ the symbolic and financial support of government to achieve a religious purpose."[17]

It is possible that the Rehnquist Court will concretize the endorsement test that Justice Sandra Day O'Connor enunciated in Lynch v. Donnelly, which warned against "government endorsement or disapproval of religion."[18] She wrote in a concurring opinion, "The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. A "direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. . . . What is crucial is that a government practice not have the effect of communicating a message of government endorsement or disapproval of religion."[19]

Lynn, Stern, and Thomas summarize Justice O'Connor's contribution to the debate: "Even noncoercive sponsorship, support, and endorsement of religion may violate the conscience of minority faiths and nonbelievers. One's standing in the political community should not be affected by the existence or intensity of one's religious commitments."[20]

It's clear that the High Court has taken the Establishment Clause seriously, determining that it's not the role of the government, in any way, shape, or form, and at any level, to promote religion. The idea is, simply, to keep the two realms as far apart as possible. And despite the flaws and problems with this system itself, the principle behind it has served this nation well. Too bad those who first framed the concept aren't here to see the results.

They would have been proud. So should we.

Albert J. Menendez is associate director of Americans for Religious Liberty, based in Silver Spring, Maryland.


[1] Justice Samuel Miller, in Watson v. Jones, 13 Wallace 729.
[2] Knowlton v. Baumhover (1918), Iowa Supreme Court, 182 Iowa 691, 166 NW 202, S.A.L.R. 841.
[3] Judd et al. v. Board of Education (1938), New York Supreme Court, 15 N.E. (2d) 576, 581, 582.
[4] 403 U.S. 602.
[5] United States v. Ballard, 322 U.S. 86, 87 (1944).
[6] 322 U.S. 87.
[7] Burstyn v. Wilson, 343 U.S. 495.
[8] McGowan v. Maryland, 366 U.S. 563, 564 (1961).
[9] Torcaso v. Watkins, 367 U.S. 495 (1961).
[10] Engel v. Vitale, 370 U.S. 425 (1962).
[11] Abington School District v. Schempp, 374 U.S. 226, 229 (1963).
[12] Epperson v. Arkansas, 393 U.S. 106 (1968).
[13] 393 U.S. 103, 104.
[14] Lemon v. Kurtzman, 403 U.S. 602, 625 (1971).
[15] Larkin v . Grendel's Den, 459 U.S. 127 (1982).
[16] Grand Rapids School District v. Ball, 473 U.S. 373 (1985).
[17] Edwards v. Aguillard, 107 S.Ct. 2573 (1987).
[18] Lynch v. Donnelly, 465 U.S. 668 (1984).
[19] Ibid., pp. 687, 691-692.
[20] Barry Lynn, Marc D. Stern, and Oliver S. Thomas, The Right to Religious Liberty (Carbondale, Ill.: Southern Illinois University Press, 1995), p. 4.

Article Author: Albert J. Menendez