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Establishment Clause Freedom of Religion - Further Readings

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Church and State
In an 1802 letter President Thomas Jefferson wrote of a need to maintain a "wall of separation" between church and state so as to avoid unequal treatmentof the young nation's citizens. The Establishment Clause of the Constitutionhas since become synonymous with the phrase "separation of church and state."The terms church and state have rather specific meanings in common usage. Church normally refers to a building used for public worship, particularly in the Christian religious tradition. The term church comes from the Greek word kuriakon meaning "of the Lord." The term state commonly refers to the 50 states composing the United States or similar political units in other countries. However, in constitutional law much broader meanings are involved forboth. Church refers to any type or form of belief system, either organized religion or more personal beliefs. State refers to any collection of people politically organized under a single government.
Many cultures in the world do not clearly distinguish between the religious and non-religious aspects of their daily lives. However, peoples of Western Society, which primarily includes Europe and North America, commonly separate their religious life from everyday events. In addition to the distinction between religious and non-religious (secular), the United States has become an increasingly pluralistic society, characterized by the presence of multiple religious traditions. The use of Christian-associated materials and practices are often offensive to those who profess other religions, as well as to those who choose to practice no religion at all.
For many states, or governments, the church was envisioned as a principal means for maintaining social unity and suppressing unwanted ideas. However, thefounders of the United States saw religion as a particularly divisive issue.
Development of Separation Concepts
Controversy over the relationship between church and state extends back at least to the Roman Empire following the adoption of Christianity as the state religion in the fourth century. At the height of church influence early in thethirteenth century, the Roman Catholic Pope issued a decree stating the church should have a voice in the civil governments of Europe. Such a proclamation led to significant conflicts with various European rulers. The strife thatfollowed between the church and various governments lasted through much of the fifteenth century before peace was restored. The uneasy tranquility betweenthe church and states quickly ended later in the sixteenth century when several Christian Protestant churches came into existence through the Reformation. The Reformation led to state churches being established in various nationsoften competing in violent conflict for power and control against the previously dominant Catholic Church. The authority of rulers to determine the religion of their subjects became generally accepted.
Consistent with the turmoil, England broke away from the Catholic Church in 1534 and established the English monarch as head of the sanctioned church of England, the Anglican Church. Through the next 150 years, religion was intensively intertwined with English politics. In 1688 King James II restored Catholicism as the state religion, but English politicians rebelled and the king fled. The following year England adopted a Bill of Rights prohibiting the kingfrom maintaining an army, levying taxes, and being a member of the Roman Catholic Church. This English Bill of Rights, in addition to the previous Magna Carta of 1215 and Petition of Right of 1628 formed the basis for emerging English liberty.
During the period of English turmoil Jamestown and Plymouth were founded in America and the colonies began to be settled. Fresh in the minds of the Founders of the United States were the seventeenth century struggles in England andrestrictions placed on those not conforming to the favored religion. In fact, many colonists left England for the colonies seeking religious freedom. Ironically, most of the original colonies soon adopted state-sanctioned religions. For that reason, the framers wrote in the First Amendment, "Congress shallmake no law respecting an establishment of religion, or prohibiting the freeexercise thereof." Thus were born two religious freedom clauses to the Constitution: the Establishment Clause and the Free Exercise Clause. The two clauses acting together ensure that government neither supports nor penalizes a religion.
The first case before the Supreme Court addressing the neutrality of government in religious disputes came in the 1872 Watson v. Jones case. The Court ruled that a dispute within the Presbyterian Church could not be resolvedin the courts but only by the church officials. Thus the Constitution gave churches the freedom to manage their own affairs free from government intervention, even by the courts. Much later, a Russian Orthodox Church dispute led the Court to hold in Kedroff v. St. Nicholas Cathedral (1952) that thefederal government could not intervene even if a church's authority is beingexerted from a foreign country unfriendly toward the United States.
The full implication of the Establishment Clause on government actions, besides obviously forbidding the sanctioning of state churches, was not defined until 1947. In Everson v. Board of Education, a decision which denied state-funded transportation to children attending parochial schools, the Courtwrote an extensive description of what the Establishment Clause means. The Court held that:
Neither a state nor the Federal Government...can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can government 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...religious beliefs or disbeliefs...No tax can be levied to support any religious activities orinstitutions.

The language was sufficiently broad to ensure government would not be able touse its power to support religion in any way.
Religion in the Public Classroom
Cases related to public schools soon dominated Establishment Clause court decisions. In the Warren and Burger Courts of the 1960s and 1970s the Court morefully defined the separation of church and state. Activities publicly accepted since public schools began operation in the United States in the mid-nineteenth century became prohibited. In 1962 the issue of officially sponsored prayer in public schools reached the Supreme Court. In Engel v. Vitale the Court held the encouragement by the public system of recitation of even anondenominational prayer was "wholly inconsistent with the Establishment Clause." For a democratic society, the Court found it would be chaotic if a religion were sanctioned and then changed "each time a new administration is elected to office." On the heels of the school prayer issue was the question of Bible readings in public schools. As in Engel, the Court found that theywere inappropriate activities in Abington School District v. Schempp(1963). Importantly, the Abington decision also extended the establishment prohibition to state governments through the Fourteenth Amendment. The Court further adopted state legislative intent as an important factor in weighing the possible appearance of inappropriate religious endorsements.
The subject of school curricula came before the Supreme Court in 1968 in Epperson v. Arkansas. In a revisit of the famous 1925 Scopes trialand the subject of evolution, the Court unanimously ruled a state law prohibiting the teaching of evolution violated the First Amendment because the law expressly promoted religious beliefs. Later, in 1987 the Court also ruled against a Louisiana law requiring equal treatment of the creation theory where evolution is taught because the law sought to advance a religious viewpoint.
Aside from school prayer, Bible, and curricula issues, determining when government programs improperly benefitted religious activities was still not resolved. In the Abington case the Court began to tackle this confusion bycreating a "purpose and effect" test. A government action must have a "secular legislative purpose and a primary effect that neither advances nor inhibitsreligion" for it to be valid. The rule for identifying Establishment Clauseviolations was further developed in Lemon v. Kurtzman (1971). The Court created a three prong test the stated: 1) the law must have a secular (i.e., not religious) legislative purpose; 2) the law in its principle or primaryeffect must neither advance nor inhibit religion; and 3) the law must not foster excessive entanglement of church and state. This test became known as theLemon test.
The Lemon test was soon applied in another public school case, Stone v. Graham (1980), involving the posting of the Ten Commandments in classrooms.The Court strongly asserted that any religion-related activities in public schools may be viewed as coercion because of the mandatory nature of attendance and the susceptibility of youth to adult influences.
Many felt the Court decisions of the 1960s and 1970s were responsive to the increasingly diverse character of the American public. Yet, sharp reactions resulted primarily from conservative Protestant groups. In reaction to the Stone decision, religious organizations sought to more fully integrate religious materials into traditional school curricula, such as history classes,so as not to stand apart as religious instruction. Several unsuccessful efforts were made to pass school prayer constitutional amendments.
The Lemon Test Turns Sour
As religious activist groups became better organized, the Religious Right, led by a loose alliance of various organizations, rose in political prominenceby 1980. The role of religion in America became a more visible issue. New Supreme Court appointments by presidents Ronald Reagan and George Bush led to adistinct lowering of the "wall" between church and state. The Lemon test wasfound by the new justices to be too inflexible and even "hostile" toward religion. Accommodation of some religious activities was no longer considered equivalent to endorsement. The test became only selectively applied to particular cases much to the consternation of those wishing to maintain a more clear distinction between church and state.
The Court found in Marsh v. Chambers (1983) that prayer led by a publicly funded chaplain to open daily sessions of state legislatures did not violate the Establishment Clause. Unlike the classroom, the justices reasoned this activity involved adults not captive to the practice. In Marsh, theCourt found the use of religion and religious symbols, such as the use of a Bible in oaths, had in many instances become so integrated in peoples' daily activities that their inclusion was more of a general ceremonial nature than actual worship in a particular religious tradition. The 1984 Lynch v. Donnelly decision drew additional attention in which the Court upheld the useof religious symbols on public property.
A perspective came to dominate: Just because government may not support religion through preferential treatment, as held in Wallace v. Jaffree (1985), such neutrality does not imply an absolute prohibition. Churches and practitioners of religion could not be denied commonly available public services,such as those related to public health and safety, normally available to all. In Westside Community Board of Education v. Mergens (1990) the Court upheld the 1984 federal Equal Access Act by allowing secondary school students to hold religious club meetings on public school property during non-instructional time as long as the facilities were also available to other secularstudent club activities. The key distinction was that school employees couldnot take a active role in religious club meetings except to ensure safety. In Zobrest v. Catalina Foothills School District (1993), the Court allowed state provision of a sign language interpreter to a deaf parochial school student under the Individuals with Disabilities Education Act (IDEA). The neutrality issue surfaced again in Rosenberger v. University of Virginia (1995) in which the Court held that school funding support of a campus religious-oriented newspaper did not violate the Establishment Clause since thefunding program was otherwise neutrally applied to all school organizations .In fact, withholding such funds would actually violate the Constitution's Free Speech Clause. Providing public funds to parochial schools was determinedto be inappropriate, but not when funds went directly to families whose children might attend parochial school.
A line of separation still existed though in the new era. In Lee v. Weisman (1992), the Court held that invocations and benedictions at secondary school graduations constituted an endorsement of religion and thus violated the Establishment Clause. Attendance was considered obligatory and school authorities selected the clergy and controlled the content of these gatherings.
A Public Moral Basis
A fundamental shift late in the twentieth century gave religious practice equal treatment under the law. Religious conduct became subject to the same lawsas the rest of society rather than protected from general laws in the spiritof separation. This change opened the door to greater government aid to religious schools and organizations.
The debate over the meaning of the Establishment Clause often focused on interpreting the original intent of the framers. Some believed the framers only sought to keep the Federal government from meddling with religious policies ofthe states several of whom had established churches in 1791, and not restrict state activities as commonly inferred. Proponents of religious liberty claimed the First Amendment established principles of political morality. Any interpretation of the original intent or understanding could be misleading because of fundamental change in American society. With many more Americans beingnon-Protestant, Protestant prayers at public events can be even less tolerated than in 1791.
The issue of separation continued to be hotly debated as the twentieth century came to a close. Many, including organizations such as the Christian Coalition, believed religion continued to be inappropriately kept out of the classroom. Even the Clinton Administration outlined guidance for inclusion of religious topics in public school curricula. The Republican-lead Congress pushed for voluntary prayer in schools as states attempted to pass religious-based measures designed to protect Bible reading and mandate the teaching of "sciencecreationism" in addition to evolution. Posting of the Ten Commandments in public buildings continued as an issue in Alabama state politics in 1998.
A broader public consensus seemed evident that government cannot be neutral to religion since religion is so important to morality and justice. A democracy requires a religious and moral basis. Many point to the role religious beliefs played in the civil rights movement of the 1960s. Though the "official" government position is to maintain a separation of church and state, a substantial majority of Americans wish to have governmental leaders reflect and be guided by religious faith and principles. In consequence, though the nation should be guided by religious values, it should be kept apart from religious matters. Recognizing the secular role of activities that include religious themes was yet to be clearly reconciled with the meaning and intent of the Establishment Clause. Though general agreement exists that some degree of separation between church and state is necessary, the tension of where to draw the line persists in the nation after two centuries.
Freedom of Speech - Public Forum Regulation, Inciting, Provocative, Or Offensive Speech, Prior Restraint, Expressive Conduct [next] [back] Freedom of Religion - Further Readings

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