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Establishment Clause Freedom of Religion

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 the thirteenth 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 that followed between the church and various governments lasted through much of the fifteenth century before peace was restored. The uneasy tranquility between the 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 nations often 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 king from 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 and restrictions 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 shall make no law respecting an establishment of religion, or prohibiting the free exercise 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 resolved in 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 the federal government could not intervene even if a church's authority is being exerted 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 Court wrote 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 or institutions.

The language was sufficiently broad to ensure government would not be able to use its power to support religion in any way.

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Law Library - American Law and Legal InformationGreat American Court CasesEstablishment Clause Freedom of Religion - Church And State, Development Of Separation Concepts, Religion In The Public Classroom, The Lemon Test Turns Sour