The Establishment Clause…That’s the IssueGerald C. Grimaud May/June 2003
Illustrations by Ricardo Stamatori
First Amendment: "Congress shall make no law respecting an establishment of religion" . . . and President Bush's plans to fund "faith-based" social programs. Has it all been said? Probably. But I haven't heard this reality set forth: Once religion is established, it will likely never be disestablished. Why be concerned? Because establishment diminishes the free exercise of religion.1
Americans have never had total disestablishment (as is, for example, evidenced by Sunday "blue law" protections, notwithstanding millions of nonbelievers and those who observe Saturday as the Sabbath); though disestablishment was intended by our Founders (as is, for example, evidenced by the First Amendment and the fact that the word "God" appears nowhere in the U.S. Constitution). However, Americans do worship as free from official religion as any other peoples in the world.
In 1970 I had occasion to speak with Andreas Papandreou while he was head of his Greek government-in-exile in Toronto. I asked Mr. Papandreou, "In the event you are ever able to return to Greece and assume power, what will be your first undertaking, your first priority?" He emphatically answered, "I will do all I can to separate church and state. The church is at the root of many of our problems."
The son of a former Greek premier, Mr. Papandreou had a Ph.D. in economics from Harvard, was published widely, taught for years at the University of Minnesota and Northwestern University, and ultimately chaired the School of Economics at the University of California at Berkeley. A 1967 military coup deposed his father's popularly elected government, and Mr. Papandreou was placed in solitary confinement for eight months. With the help of influential Americans, Mr. Papandreou was released, formed a government-in-exile, and taught at York University, in Toronto. Mr. Papandreou was ultimately able to return to Greece as democracy was restored in 1974. In 1981 he was elected prime minister.
I followed Mr. Papandreou's political career through the New York Times. He was good to his word regarding church and state. He accomplished much, e.g. reformed divorce laws. He even obtained support from some in the church, such as the primate of Greece and certain theologians, who agreed separation would benefit both the church and the government.2 However, Mr. Papandreou, though critical of our foreign policy at the time, said he envied America for, among other things, its First Amendment.
While not speaking of the establishment clause as an impediment, I believe President Bush sees it as a major hurdle to his desire to channel billions to parochial schools and social programs. The president's current plan, it appears to me, is the boldest and most aggressive collateral attack on the establishment clause since its 1791 ratification. America is entering new territory.
If the president's religion assistance program makes it past the U.S. Supreme Court, as it may, I fear religion in this country will never be disestablished. It took a violent revolution to achieve America's establishment clause. Once it is lost in substance we will never get it back. Humanity will have lost its noblest battle. I hope I am wrong.
Gerald C. Grimaud is a former Pennsylvania assistant attorney general. He is engaged in the general practice of law in his hometown of Tunkhannock, Pennsylvania. His cases include constitutional, criminal, and civil rights law.
1 Leonard Levy, Origin of the Bill of Rights (Yale University Press, 1999), p 79. ("Equality for all opinions on the subject of religion and for the free exercise of religious conscience cannot exist in the presence of an establishment of religion.")
2 New York Times, Apr. 11, 1982.