The First Amendment to the United States Constitution covers five limitations placed on the Congress and reads as follows:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Let’s examine the first prohibition – religion.
James Madison’s original text submitted for review was: “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretence, infringed.”
The House and Senate each altered the wording and in the conference committee, chaired by Madison, the present language was written with its somewhat more indefinite “respecting” phraseology.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”
This became what is referred to as the Establishment Clause that prohibits the government from making any law “respecting an establishment of religion.” This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another. It also prohibits the government from unduly preferring religion over non-religion, or non-religion over religion.
The concept of separation of church and state was first implemented by Roger Williams (my great, great . . . great grandfather).
Williams was a devout Christian and was expelled by the Puritan leaders of the Massachusetts Bay Colony for spreading “new and dangerous ideas.” He established the Providence Plantations in 1636 as a refuge offering what he termed, “liberty of conscience,” – essentially the separation of church and state.
Thomas Jefferson was more specific in his famous letter to the Danbury Baptists in 1802 where he wrote: “Believing with you that religion is a matter which lies solely between man & his god, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” thus building a wall of eternal separation between Church & State.”
Challenges to the Establishment Clause
- The Establishment Clause largely went untested until the 1940’s in Everson v. Board of Education (1947). This was a landmark decision that incorporated the Establishment Clause as binding upon the states through the Due Process Clause of the Fourteenth Amendment.
- In Wisconsin v Jonas Yoder (1972), the Supreme Court determined that parents’ fundamental right to freedom of religion outweighed the state’s interest in educating its children. The case is often cited as a basis for parents’ right to educate their children outside of traditional private or public schools.
- In Abington School District v Schempp (1963), the Supreme Court declared school-sponsored Bible reading in public schools in the United States to be unconstitutional
- In Lemon v. Kurtzman (1971), the Supreme Court found that the passing of any state laws that establish a religious body is a direct violation of the United States Constitution. The case began because the state of Pennsylvania passed a law that allowed the local government to use money to fund educational programs that taught religious-based lessons, activities and studies. The verdict in Lemon v. Kurtzman led to the creation of the Lemon Test – a classification system that is used to determine whether or not state laws regarding funding or creating religious institutions with public money violate the United States constitution. The Lemon test ensures that the general population’s interests take priority within public institutions and settings. The Lemon test also prohibits the Federal Government from becoming overly religious or involved with a particular religious institution.
- In Westside Community Board Of Educatiion. v. Mergens (1990), the Supreme Court held that if a school provided its facilities to some groups during off-hours, it must also make those facilities available to religious groups as well.
- In Lee v. Weisman (1992) the Supreme Court decided that schools may not sponsor clerics to conduct even non-denominational prayer.
- In Van Orden v Perry (2005), the Supreme Court ruled that a display of the Ten Commandments on a monument given to the government at the Texas State Capitol in Austin did NOT violate the Establishment Clause – upholding the ruling of the US Court of Appeals that the monument conveyed BOTH a religious AND a secular message. The Court chose not to employ the popular Lemon Test in its analysis, reasoning that the display at issue was a “passive monument.”
- In McCreary County v. ACLU of Kentucky (2005) a suit brought by the American Civil Liberties Union of Kentucky, the United States Court of Appeals Sixth Circuit held that the displays—in this case, a Ten Commandments display at the McCreary County courthouse in Whitley City, Kentucky and a Ten Commandments display at the Pulaski County courthouse—were unconstitutional.
Although it appears that the Supreme Court has thought that some government action implicating religion is permissible, and indeed unavoidable, it has not become clear just how much the Establishment Clause tolerates.
Inevitably, challenges to the Establishment Clause will continue.