The Establishment Clause

By Richard R. Hammar, J.D., LL.M., CPA

© Copyright 1991, 1998 by Church Law & Tax Report.  All rights reserved.  This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service.  If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m88

The clearest evidence that the framers of the first amendment's establishment clause intended only to prohibit the creation of a national church is the virtual absence of any judicial decisions applying the clause in the first century and a half following its adoption despite the existence of innumerable state and federal accommodations of religion.¹ Prior to 1940, the Supreme Court interpreted the establishment clause on only a few occasions. In 1890, it rejected a claim that an Idaho law prohibiting polygamy constituted an impermissible establishment of religion.² The Court observed that the purpose of the establishment clause was to prohibit federal legislation

for the support of any religious tenets, or the modes of worship of any sect. The oppressive measures adopted, and the cruelties and punishments inflicted, by the governments of Europe for many ages, to compel parties to conform in their religious beliefs and modes of worship, to the views of the most numerous sect, and the folly of attempting in that way to control the mental operations of persons, and enforce an outward conformity to a prescribed standard, led to the adoption of the [first] amendment.³

In 1918, the Court summarily dismissed a claim that the exemption of ministers from military conscription constituted the establishment of a religion.⁴

In 1940, the Court reaffirmed that the purpose of the establishment clause was to prevent an established church: “[I]t forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship.”⁵ However, the Court added that the concept of “liberty” protected against state interference by the fourteenth amendment to the federal Constitution “embraces the liberties guaranteed by the first amendment.” The significance of this holding cannot be overstated. The first amendment's liberties, including the free exercise and nonestablishment of religion, intended by the framers of that amendment as a limitation on the federal government and so interpreted for a century and a half,⁶ were now also limitations upon state and local governments. Ironically, shortly after this unwarranted expansion of federal authority over the states, the Court remarked that “[j]udicial nullification of legislation cannot be justified by attributing to the framers of the Bill of Rights views for which there is no historic warrant.”⁷

Despite this assurance, the Court largely abandoned the views of the framers of the establishment clause in its landmark Everson decision in 1947.⁸ In Everson, a case involving a constitutional challenge to a state law authorizing bus transportation for parochial school students at public expense, the Court announced the following interpretation of the establishment clause:

Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go 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 entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect a wall of separation between church and state.⁹

Four dissenting justices similarly remarked that the first amendment's purpose

was not to strike merely at the official establishment of a single sect, creed or religion, outlawing only a formal relation such as had prevailed in England and some of the colonies. Necessarily, it was to uproot all such relationships. . . . It was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.¹⁰

Thus, by 1947, the Court not only had expanded the prohibitions of the establishment clause beyond anything contemplated by its framers, but also had enjoined its interpretation upon state and local governments by means of the fourteenth amendment.¹¹

The Court found in Jefferson's “wall of separation” metaphor the philosophical basis for its interpretation of the establishment clause in Everson. However, as Justice Rehnquist demonstrated convincingly nearly 40 years later, Jefferson's metaphor cannot properly be used as evidence of the meaning of the establishment clause.¹²

In the years following Everson, several longstanding accommodations of religious belief and practice fell victim to this distorted interpretation of the establishment clause. In 1948, the Court, specifically relying on Everson and Jefferson's “wall of separation” metaphor, struck down a local school board policy that permitted teachers employed by private religious groups to come weekly into public school buildings during regular school hours and impart religious instruction for 30 minutes to students whose parents requested it.¹³

In 1962, the Court struck down a New York law requiring the following prayer to be said aloud in each public school classroom at the beginning of each school day: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country.”¹⁴ The Court concluded that recitation of the prayer in public schools “breaches the wall of separation between church and state,” even though children who were opposed to the prayer were not compelled to participate and could be excused from class until the recitation was completed. Similarly, the Court in 1963 invalidated a Pennsylvania law requiring that “[a]t least ten verses from the Holy Bible shall be read, without comment, at the opening of each public school on each school day.”¹⁵ The law permitted children to be excused from attending class during the reading upon the written request of a parent. The Court relied entirely on the expansive interpretation of the establishment clause enunciated in Everson in striking down the law.

In 1968, the Court struck down an Arkansas law making it unlawful for public school teachers to “teach the theory or doctrine that mankind ascended or descended from a lower order of animals.”¹⁶ The Court, relying on Everson, concluded that the first amendment “does not permit the state to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma.”

In 1971, the Court held that its establishment clause decisions since Everson could be embodied in a three--pronged test: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive governmental entanglement with religion.”¹⁷ This test, known as the three--pronged Lemon test, enshrined the dubious interpretation of the establishment clause announced in Everson and its progeny. The Court, in amplifying on this test, has observed that “[t]he purpose prong of the Lemon test asks whether government's actual purpose is to endorse or disapprove of religion. The effect prong asks whether irrespective of thegovernment's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval. An affirmative answer to either question should render the challenged practice invalid.”¹⁸ With regard to the primary effect prong, the Court has further observed that “not every law that confers an `indirect,' `remote,' or `incidental' benefit upon [religion] is, for that reason alone, constitutionally invalid.”¹⁹ “Excessive entanglement” between church and state connotes “comprehensive, discriminating, and continuing state surveillance.”²⁰ The Court suggested in Lemon that laws or government practices having the potential for “political divisiveness” may violate the entanglement prong. However, the Court later confined this aspect of entanglement to “cases where direct financial subsidies are paid to parochial schools or to teachers in parochial schools.”²¹

Application of the Lemon standard resulted, predictably, in the invalidation of many additional accommodations of religious practice. For example, the Supreme Court outlawed several programs providing limited assistance to private education,²² a Kentucky law requiring a copy of the Ten Commandments to be posted in each public school classroom,²³ a state law specifying that each public school day should begin with a minute of silence during which students could pray, meditate, or occupy themselves in any other manner they chose,²⁴ a state law requiring that public schools present both the theories of evolution and “creation science,”²⁵ and a nativity display maintained in a county courthouse building during the Christmas season that was not a part of a larger display containing secular symbols.²⁶ Lower federal courts invalidated scores of religious practices on the basis of the Lemon test.

The Supreme Court has often expressed misgivings about the Lemon formulation. In 1971, the Court called the Lemon test a mere “guideline.”²⁷ It later described the test as “no more than [a] useful signpost,”²⁸ and expressed an unwillingness to be “confined to any single test or criterion.”²⁹ Similarly, the Court has noted that the test “is not easily applied”³⁰ and “sacrifices clarity and predictability for flexibility.”³¹ The Court has disregarded the Lemon test on at least two occasions. In 1982, the Court deviated from the Lemon test in striking down a Minnesota statute requiring certain religious organizations to register with the state prior to soliciting contributions.³² The Court, observing that the Lemon test was “intended to apply to laws affording a uniform benefit to all religions,” announced the following two--part test to be used in assessing the constitutionality of a law that discriminates “among religions”: (1) The law must be justified by a compelling governmental interest, and (2) it must be closely fitted to further that interest.

In 1983, the Court again deviated from the Lemon test in upholding the practice of legislative chaplains,³³ reversing a federal appeals court ruling that invalidated the practice on the basis of the Lemon test. The Court, noting that the very Congress that approved the first amendment establishment clause also voted to appoint and pay a chaplain for both houses, concluded that “it would be incongruous to interpret that clause as imposing more stringent first amendment limits on the states than the draftsmen imposed on the federal government.” Such cases are a repudiation, at least in part, of the hostility that the Court has shown to religious practice since Everson. They suggest that there is hope for a repudiation of Everson and the Lemon test, and a return to an interpretation of the establishment clause that is faithful to its history and purpose.³⁴ However, until the three--part Lemon test is repudiated, it likely will continue to be the primary analytical tool employed by the courts in establishment clause cases, with the following limitations:

1. Laws that discriminate between religious groups will be upheld against a claim that they violate the establishment clause only if (1) they are justified by a compelling governmental interest, and (2) they are closely fitted to further that interest.³⁵

2. Certain accommodations of religious custom and practice may be validated by history. For example, in 1984 the Supreme Court upheld the practice of including a nativity scene on public property as part of a Christmas display.³⁶ While the Court validated the practice on the basis of Lemon, its application of the Lemon test was influenced if not controlled by historical precedent. Noting that the nativity scene had the secular purpose of depicting the origins of Christmas, did not have a primary effect of advancing religion, and did not create an excessive entanglement between church and state, the Court concluded: “It would be ironic, however, if the inclusion of a single symbol of a particular religious event, as part of a celebration acknowledged in the Western World for 20 centuries, and in this country by the people, by the Executive Branch, by the Congress, and the courts for two centuries, would so taint the City's exhibit as to render it violative of the establishment clause.” Similarly, the court upheld the constitutionality of legislative chaplaincies in 1983 on the basis of historical precedent without any reference to the Lemon test.³⁷ The Court found controlling the fact that the first Congress, which approved the first amendment establishment clause, also voted to appoint and pay a chaplain for each House.

3. The benefits of public welfare legislation cannot be denied to any group of persons “because of their faith, or lack of it.”³⁸ For example, the establishment clause does not require that a law authorizing free transportation of children to school must exclude children attending private religious schools.

4. As noted in the article: The Free Exercise Clause, the principles underlying the establishment clause can in some cases conflict with the values embodied in the free exercise of religion clause. Therefore, neither clause should be construed in isolation. The establishment clause, properly construed in light of the free exercise of religion clause, mandates governmental neutrality toward religion. Neither sponsorship nor hostility is permissible.

5. “[N]ot every law that confers an `indirect,' `remote,' or `incidental' benefit upon [religion] is, for that reason alone, constitutionally invalid.”³⁹

The following table summarizes several federal court decisions applying the establishment clause since 1970. These cases are impossible to reconcile, and they illustrate the absurd and unprincipled consequences that have resulted from the Court's abandonment of the original intention of the framers of the first amendment.

Table 17--1

The Free Exercise Clause