Establishment Clause

Religious freedom sounds great - it's an important part of American identity and helps protect people from oppression. But it's not quite as easy to define or enforce. The Constitution tries to deal with this via the Establishment Clause and the Free Exercise Clause, which both restrain the government's power and protect individual rights. The many Supreme Court cases that try to walk the line between allowing freedom of religion while preventing people from skirting the law show how difficult it is to enforce religious freedom!

Establishment Clause Definition

The Establishment Clause is found in the First Amendment to the Constitution. The text reads:

The Establishment Clause means that the government does not have the authority to create, endorse, or encourage an official state religion, effectively codifying the separation between church and state. It means that the government can't favor one religious group over another or religious people over non-religious people (and vice versa).

Figure 1: A painting of the Constitutional Convention in 1787, when Congress met to develop the country's first constitution. Source: Wikimedia Commons

Religious Establishment Clause

The Establishment Clause is sometimes referred to as the Religious Establishment Clause. Along with the Free Exercise Clause, it represents the right to freedom of religion.

The Free Exercise Clause is the phrase immediately following the Establishment Clause - so they are often interpreted together! The full sentence reads:

Establishment Clause and the First Amendment

Today, we're pretty far removed from the practice of combining church and state into one official, state-sanctioned religion. However, this practice was common during much of the Medieval and Renaissance periods in Europe. So much so that the framers of the Constitution were in agreement that the United States government should be prevented from ever creating a state religion.

Problems with State Religions

In England, the official religion changed from monarch to monarch: it would bounce from Catholicism to Anglicanism to Protestantism and back again. Every time it switched, it brought with it tremendous strife and persecution for anyone who failed to adhere to the official religion. The religious leaders had significant influence: religious power became synonymous with political power. This backdrop is what led to the Puritans settling much of modern-day New England.

Bill of Rights

The Establishment Clause, along with the other Constitutional individual rights, was added two years after the passage of the Constitution in the Bill of Rights (1791).

Establishment Clause and Free Exercise Clause

The Establishment Clause and Free Exercise Clause were intended to work together complementarily: the Establishment Clause would restrain the government by taking away any authority to establish religion, while the Free Exercise Clause would protect individual rights by explicitly saying that the government couldn't interfere with the exercise of religion.

Unfortunately, policy is never that simple! Over time, some key issues have revealed that these two clauses can sometimes fall into conflict.

Accommodation

Many conflicts between the Establishment Clause and the Free Exercise Clause center around government accommodation of religion. For example, does providing prisoners with meals based on religious dietary restrictions (i.e. halal or kosher food) to protect their free exercise of religion, amount to the government favoring religious people over other people? What about exempting people from military service if they believe it's against their religion (called Conscientious Objectors)?

Figure 2: Photographed above are Mennonites, who were given alternative (non-military) work during World War I to accommodate their religious requirement for pacifism. Source: Mennonite Church USA Archives, Wikimedia Commons

Religious Discrimination Exemptions

The government has created some exemptions for religious organizations that allow them to discriminate against certain groups of people. In Burwell v. Hobby Lobby (2014), the Supreme Court ruled that the owners of Hobby Lobby didn't have to cover costs of birth control under their employer-provided healthcare plan if it violated their religious beliefs. While the majority opinion cited the Free Exercise Clause, the dissenting opinion claimed that the ruling allowed Hobby Lobby to infringe upon the rights of its female employees.

Exceptions to the Exception

In some cases, the courts ruled that religious exceptions for discrimination don't apply, especially around racial discrimination. In Newman v. Piggie Park (1968), the owner of the Piggie Park franchise wouldn't allow Black people to eat in his restaurants, claiming it violated his religious beliefs. The Supreme Court ruled against Piggie Park, saying that it didn't qualify as a religious exemption.

In Bob Jones University v. United States (1983), the Supreme Court ruled that the university should lose its tax-exempt status because of its policy against interracial dating and marriages. Even though the university claimed it was part of their religious beliefs, the Supreme Court decided that "not all burdens on religion are unconstitutional."

Establishment Clause Cases

The main issues of contention when it comes to enforcing the Establishment Clause are around government use of prayer, funding for religious organizations, and religious symbols.

Prayer

The issue of prayer in government-sponsored activities came up in Engel v. Vitale (1962). Some parents sued the New York public school system because they started each day out with a prayer, saying that it violated the Establishment Clause. The Supreme Court agreed with them and said that the government, through the administration of public education, could not endorse any religion (or any religion over non-religion). In recent years, this ruling has been extended to prayers during graduation ceremonies and football games.

However, in Marsh v. Chambers (1983), the Supreme Court upheld the practice of having a prayer at the beginning of legislative sessions, saying that it had a strong enough historical precedent (starting with the First Continental Congress) to have a secular purpose and thus be permissible. Today, Congress invites chaplains from various religious backgrounds to conduct the opening prayer.

Figure 3: Congress invites chaplains (such as Imam Yahya Hendi, a Muslim chaplain, pictured above) to start the legislative session. Source: NearTheZoo, Wikimedia Commons, PD-CSPAN

Financial Support

The first case involving state funding for religious schools was Everson v. Board of Education (1947). At the time, New Jersey provided transportation to children going to public schools and private schools, including religiously affiliated schools. Some parents sued the state, saying that public funding (through the bus system) shouldn't go to religious schools.

The Supreme Court ruled that it did not violate the Establishment Clause since the practice focused on helping students and their parents rather than the schools. Therefore, it did not breach the "wall of separation" between the church and state.

Lemon v. Kurtzman (1971)

In Lemon v. Kurtzman, the Supreme Court ruled that using taxpayer money to fund non-public, non-secular schools violated the Establishment Clause. They said that the policy represented an "excessive government entanglement" with religion by using government money provided by taxpayers, who may not agree or adhere to the religious beliefs of the school to whom their money is being sent.

The Lemon Test

To make the decision in Lemon v. Kurtzman, the Supreme Court developed what is known as the Lemon Test. The Lemon Test assesses whether the law in question:

• Has a secular purpose
• Either advances or inhibits religion
• Results in the government's excessive entanglement with religion.

Several decades later, the court decided (in Zelman v. Simmons-Harris, 2002) that taxpayer-funded school vouchers could be used to send children to religious schools.

Establishment Clause Example - Religious Symbols

One Supreme Court case (Lynch v. Donnely, 1984) started when the city of Pawtucket's Christmas display included a nativity scene. The Supreme Court ruled that it didn't violate the Establishment Clause because the historical origins of the holiday decorations had a secular purpose and that there was no purposeful effort to convey a religious message. In making the decision, they developed the endorsement test.

However, just five years later, the court went a different direction: in County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter (1989) they ruled that the nativity scene and sign reading "Glory to God for the birth of Jesus Christ" outside of the Pittsburgh courthouse did constitute an endorsement of Christianity, thus failing the endorsement test. However, they ruled that a display containing a Christmas tree and a Menorah was permissible, saying that it passed the coercion test.