Establishment Clause
In American law, the Establishment Clause of the First Amendment to the United States Constitution, together with that Amendment's Free Exercise Clause, form the constitutional right of freedom of religion. The Establishment Clause and the Free Exercise Clause together read:
The Establishment Clause acts as a double security, prohibiting both control of the government by religion and political control of religion by the government. By it, the federal government of the United States and, by later extension, the governments of all U.S. states and U.S. territories, are prohibited from establishing or sponsoring religion.
The clause was based on a number of precedents, including the Constitutions of Clarendon, the Bill of Rights 1689, and the first constitutions of Pennsylvania and New Jersey. An initial draft by John Dickinson was prepared in conjunction with his drafting the Articles of Confederation. In 1789, then-congressman James Madison prepared another draft which, after discussion and debate in the First Congress, would become part of the text of the First Amendment of the Bill of Rights. The Establishment Clause is complemented by the Free Exercise Clause, which prohibits government interference with religious belief and, within limits, religious practice.
The Establishment Clause is a limitation placed upon the United States Congress preventing it from passing legislation establishing an official religion and, by interpretation, makes it illegal for the government to promote theocracy or promote a specific religion with taxes. The Free Exercise Clause prohibits the government from preventing the free exercise of religion. While the Establishment Clause prohibits Congress from preferring one religion over another, it does not prohibit the government's involvement with religion to make accommodations for religious observances and practices in order to achieve the purposes of the Free Exercise Clause.
Historical background
Constitutions of Clarendon
The Constitutions of Clarendon, a 12th-century English law, had prohibited criminal defendants' using religious laws to seek exemption from criminal prosecution.1689 Bill of Rights
The 1689 English Bill of Rights secured the rights of all "persons" to be free from establishment of Roman Catholic laws in the government of England.Colonial New Jersey and Pennsylvania Constitutions
The original Mason-Dixon line was the demarcation line between the Catholic colony of Maryland and the New Jersey and Pennsylvania colonies, which followed the 1689 Bill of Rights and their own colonial constitutions which provided similar protections against the establishment of Catholic laws in government.Virginia Statute for Religious Freedom
A possible additional precursor of the Free Exercise Clause was the Virginia Statute for Religious Freedom. The statute was drafted by Thomas Jefferson in 1777 and was introduced in the Virginia General Assembly in 1779. It did not pass the General Assembly until 1786. James Madison played an important role in its passage. The statute disestablished the Church of England in Virginia and guaranteed freedom of religion exercise to men of all religious faiths, including Catholics and Jews as well as members of all Protestant denominations.United States Bill of Rights
The First Amendment is part of a group of 10 Amendments to the United States Constitution known as the Bill of Rights. The idea of adding a Bill of Rights to the Constitution was proposed by George Mason five days before the conclusion of the Constitutional Convention held in Philadelphia in 1787. His proposal was rejected by the other delegates. Alexander Hamilton later argued in The Federalist Papers that a Bill of Rights was unnecessary, claiming that since the Constitution granted limited powers to the federal government, it did not grant the new government the power to abuse the rights that would be secured by a Bill of Rights. Nevertheless, the supporters of the Constitution in order to secure its ratification in Massachusetts, agreed to add a group of amendments to the Constitution after its ratification that would serve as a Bill of Rights. Later, six more states likewise recommended the addition of a Bill of Rights, and the idea was also endorsed by Jefferson and Madison. When the First Federal Congress met in 1789, Madison implemented the idea by introducing 17 Amendments to the Constitution. By December 1791, ten of his Amendments were ratified by the necessary three quarters of the states, and they became part of the US Constitution, thereafter becoming known as "the Bill of Rights".Concerns of Virginia Baptists
The Establishment Clause addressed the concerns of members of minority faiths who did not want the federal government to establish a state religion for the entire nation. The Baptists in Virginia, for example, had suffered discrimination prior to the state's disestablishment of the Anglican church in 1786. As Virginia prepared to hold its elections to the state ratifying convention in 1788, the Baptists were concerned that the Constitution had no safeguard against the creation of a new national church. In Orange County, Virginia, two federalist candidates, James Madison and James Gordon Jr., were running against two anti-federalists, Thomas Barbour and Charles Porter. Barbour requested to John Leland, an influential Baptist preacher and fervent lifelong proponent of religious liberty, that he write a letter to Barbour outlining his objections to the proposed Constitution. Leland stated in the letter that, among his other concerns, the Constitution had no Bill of Rights and no safeguards for religious liberty and freedom of the press. A number of historians have concluded on the basis of compelling circumstantial evidence that, just prior to the election in March 1788, Madison met with Leland and gained his support of ratification by addressing these concerns and providing him with the necessary reassurances. In any event, Leland cast his vote for Madison. Leland's support, according to Scarberry, was likely important to the overwhelming victory of Madison and Gordon.Incorporation
Prior to the enactment of the Fourteenth Amendment to the United States Constitution in 1868, the Supreme Court generally held that the substantive protections of the Bill of Rights did not apply to state governments. Subsequently, by the Incorporation doctrine, the Bill of Rights has been broadly applied to limit state and local government as well. The process of incorporating the two Religion Clauses in the First Amendment was twofold. The first step was the Supreme Court's conclusion in 1940 that the Free Exercise Clause was made applicable to the states through the Fourteenth Amendment. Conceptually, this raised few difficulties: the Due Process Clause protects those rights in the Bill of Rights "implicit in the concept of ordered liberty," and free exercise of religion is a quintessential individual right.Incorporation of the Establishment Clause in 1947 proved to be problematic in several ways and subject to criticism. The controversy concerning its incorporation results primarily from the fact that one of the intentions of the Establishment Clause was to prevent Congress from interfering with state establishments of religion that existed at the time of the founding – a fact conceded by even those members of the Court who believe the Establishment Clause was made applicable to the states through incorporation. Critics, such as Clarence Thomas, have also argued that the Due Process Clause of the Fourteenth Amendment is understood to incorporate only individual rights found in the Bill of Rights; the Establishment Clause, unlike the Free Exercise Clause, does not purport to protect individual rights.
Financial assistance
Prior to American independence, most of the original colonies supported religious activities with taxes, with several colonies choosing a single church as its official religion. These official churches enjoyed privileges not granted to other religious groups. Massachusetts and Connecticut supported the Congregational church by taxes. In colonial South Carolina, the Anglican Church benefited from church taxes. Other colonies would more generally assist religion by requiring taxes that would partially fund religious institutions - taxpayers could direct payments to the Protestant denomination of their choosing. Only the colonies of Delaware, New Jersey, Pennsylvania and Rhode Island did not require a tax to support religion. During and after the American Revolution, religious minorities, such as the Methodists and the Baptists, argued that taxes to support religion violated freedoms won from the British. Defenders of the practice argued that government needed to fund religious institutions because public virtue depended on these institutions which could not survive purely on private donations.The Supreme Court first considered the question of financial assistance to religious organizations in Bradfield v. Roberts. The federal government had funded a hospital operated by a Roman Catholic institution. In that case, the Court ruled that the funding was to a secular organizationthe hospitaland was therefore permissible.
During the twentieth century, the Supreme Court more closely scrutinized government activity involving religious institutions. In Everson v. Board of Education, the Supreme Court upheld a New Jersey statute funding student transportation to schools, whether parochial or not. Justice Hugo Black held,
The New Jersey law was upheld, for it applied "to all its citizens without regard to their religious belief". After Everson, lawsuits in several states sought to disentangle public monies from religious teaching, the leading case being the 1951 Dixon School Case of New Mexico.
The Jefferson quotation cited in Black's opinion is from a letter Jefferson wrote in 1802 to the Baptists of Danbury, Connecticut, that there should be "a wall of separation between church and state." Critics of Black's reasoning have argued that the majority of states did have "official" churches at the time of the First Amendment's adoption and that James Madison, not Jefferson, was the principal drafter. However, Madison himself often wrote of "perfect separation between the ecclesiastical and civil matters", which means the authority of the church is decided by church authority, and that which is decided in civil government is decided by civil authorities; neither may decree law or policy in each other's realm. Another description reads: "line of separation between the rights of religion and the civil authority... entire abstinence of the government", and "practical distinction between Religion and Civil Government as essential to the purity of both, and as guaranteed by the Constitution of the United States".
In Lemon v. Kurtzman, the Supreme Court ruled that government may not "excessively entangle" with religion. The case involved two Pennsylvania laws: one permitting the state to "purchase" services in secular fields from religious schools, and the other permitting the state to pay a percentage of the salaries of private school teachers, including teachers in religious institutions. The Supreme Court found that the government was "excessively entangled" with religion, and invalidated the statutes in question. The excessive entanglement test, together with the secular purpose and primary effect tests thereafter became known as the Lemon test, which judges have often used to test the constitutionality of a statute on establishment clause grounds.
The Supreme Court decided Committee for Public Education & Religious Liberty v. Nyquist and Sloan v. Lemon in 1973. In both cases, states—New York and Pennsylvania—had enacted laws whereby public tax revenues would be paid to low-income parents so as to permit them to send students to private schools. It was held that in both cases, the state unconstitutionally provided aid to religious organizations. The ruling was partially reversed in Mueller v. Allen. There, the Court upheld a Minnesota statute permitting the use of tax revenues to reimburse parents of students. The Court noted that the Minnesota statute granted such aid to parents of all students, whether they attended public or private schools.
While the Court has prevented states from directly funding parochial schools, it has not stopped them from aiding religious colleges and universities. In Tilton v. Richardson, the Court permitted the use of public funds for the construction of facilities in religious institutions of higher learning. It was found that there was no "excessive entanglement" since the buildings were themselves not religious, unlike teachers in parochial schools, and because the aid came in the form of a one-time grant, rather than continuous assistance.
One of the largest recent controversies over the amendment centered on school vouchers—government aid for students to attend private and predominantly religious schools. The Supreme Court, in Zelman v. Simmons-Harris, upheld the constitutionality of private school vouchers, turning away an Establishment Clause challenge.