Establishment Clause

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The Establishment Clause is found in the First Amendment to the U.S. Constitution. This cause prohibits the federal government from making any law regarding the establishment of, or freedom to practice religion. In simple terms, the Establishment Clause prohibits the United States government from establishing an official religion, as well as from taking any actions that favor one religion over another. To explore this concept, consider the following Establishment Clause definition.

Definition of Establishment Clause

Noun

  1. A clause in the First Amendment of the United States Constitution that prohibits the government from establishing an official religion, or taking actions that favor one religion over another, or over or a non-religion.

Origin

U.S. Constitutional Amendment

What is the Establishment of Religion Clause

The Establishment of Religion Clause was written into the First Amendment to prevent the federal or state governments from endorsing or supporting any specific religion in any manner. This includes endorsing any religion over a non-religion, and vice versa. The clause states:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

The First Amendment is absolute, making it clear that no laws may be made in regard to religion. The Establishment of Religion Clause was placed in the Bill of Rights because the framers of the Constitution strongly believed that intertwining government and religion would lead to oppression.

History of the Establishment of Religion Clause

In 1777, Thomas Jefferson drafted the Virginia Statue for Religious Freedom, which put an end to the Church of England in the state. While Jefferson presented the proposed statute to the Virginia General Assembly in 1779, it did not pass until 1768, when James Madison took up the cause in 1786. The Virginia Statue for Religious Freedom guaranteed freedom of religion to all people in the state, regardless of their religious preference. This statute played a large part in the creation of the Establishment of Religion Clause.

The first 10 amendments to the U.S. Constitution are referred to as the Bill of Rights, and were proposed in 1787 by delegate to the Constitutional Convention, George Mason, though the amendments were rejected. Supporters of the Constitution in Massachusetts, however, held to their beliefs and agreed to the group of amendments, which would later become known as the Bill of Rights. Shortly thereafter, six other states followed suit, bringing the support of more delegates. In 1789, the Bill of Rights was introduced to the First Federal Congress, which was ratified by three-quarters of the states, in 1791.

In the drafting of the Bill of Rights in 1789, Massachusetts Congressman Fisher Ames wrote the Establishment Clause. The Establishment Clause itself addressed the concerns of the minority religions that feared the federal government would form a state religion.

As Virginia prepared for their elections in 1788 for the ratifying convention, Baptist groups argued that the Constitution did not safeguard against the establishment of a state church. In 1947, incorporation of the clause became a major issue of controversy with the judicial system, as members of the court believed that the clause was applicable to the states through incorporation. As a great deal of controversy has continued to surround the Establishment Clause, certain tests have been developed in recent decades to aid the courts in interpreting the Clause.

Tests Used to Interpret the Establishment Clause

As with many provisions of the U.S. Constitution, the Establishment Clause leaves a great deal to interpretation. Tests have been developed since its inception to help clarify the meaning of the Clause, as well as its limitations. The most commonly used of these tests include the Lemon, coercion, and endorsement tests.

Lemon Test

In the 1971 case of Lemon v. Kurtzman, the U.S. Supreme Court heard arguments as to whether the state should support a program that would provide aide to religious schools. In determining whether the government could give aid to an educational institution operated by a religious entity, the court applied a three-part test, now known as the Lemon Test. The three questions that must be answered in the Lemon Test include:

  1. Does the action taken by the government, or the law established, have a legitimate secular purpose? If the answer is no, the violates the clause.
  2. Is the primary goal of the government’s action, or law established, have the effect of advancing or inhibiting any religion? If the answer if yes, it violates the clause.
  3. Does the action taken, or law established, allow for an intertwining of government with religion? If so, it violates the clause.

For example:

People of different religious groups, all of whom are employed at a state university, petition the state legislature to enact a law protecting their right to observe the Sabbath. In doing so, the employees would not have to fear repercussion from their employers for observing the Sabbath on the specific days they consider to be the Sabbath.

Because the individual employees vary in religious preferences, some observing the Sabbath on Saturday, and others observing the Sabbath on Sunday, passing such a law would require the government to decide what activities are considered to be in observance of the Sabbath, and which ones are not. This would definitely amount to excessive governmental entanglement. This in turn, violates the third prong of the Lemon Test.

Coercion Test

The Supreme Court Justice Anthony Kennedy, in his dissent of the Court’s ruling in the 1989 case of Allegheny County v. ACLU, outlined a test in which the government is allowed more leeway in support of certain religious issues. This test, known as the Coercion Test, stipulates that the government is not in violation of the Establishment Clause unless it:

  • Gives direct aid to religion in a manner that tends to establish a state church, or
  • Coerces people to participate in or support religion against their will.

According to this test, the government is permitted to construct or display religious symbols in public buildings during the Christmas season, without violating the Establishment Clause.

Endorsement Test

In deciding the 1984 cause of Lynch v. Donnelly, the U.S. Supreme Court ruled that, if a government action creates, in the eyes of a reasonable observer, a perception that the government is either advocating for, or disapproving of, a religion, it is in violation of the Establishment Clause. In the Court’s written decision, Justice Sandra Day O’Conner explained:

“The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community.”

The endorsement test is often used in situations where the government becomes involved in conflict over such religious activities or expressions, such as praying at school activities or graduation, or the placement of religious symbols or signs on government property.

Landmark Establishment Clause Cases

Throughout the years, the vague language of the First Amendment to the U.S. Constitution has brought litigants before the U.S. Supreme Court, seeking clarification. From public display of religious symbols, to funding of religious activities, decisions by the Court have shaped how America views the interaction between church and state.

Van Orden v. Perry

In 1961, the Fraternal Order of Eagles gifted the State of Texas a 6-foot by 3-foot stone monument featuring the 10 Commandments for display at the state capitol in Austin, Texas. The area in which it was erected contained 17 other monuments, and 21 historical markers, all of which commemorated events, values, and people that shaped the very identity of Texans.

In 2003, Austin attorney Thomas Van Orden filed a lawsuit seeking to have the 10 Commandments memorial removed, as it violated the Establishment Clause. The U.S. District Court ruled that the display was constitutional, as it conveyed both religious and secular messages. Orden appealed the decision to the U.S. Supreme Court, which ultimately upheld the lower court’s decision. The court held that the Ten Commandments display served both secular and religious purposes, and therefore it was legal.

As the Court considered Van Orden v. Perry, it also considered the case of McCreary County vs. ACLU of Kentucky, though this case was decided differently. This case was brought by the American Civil Liberties Union (the “ACLU”) in response to the posting of the 10 Commandments at two county courthouses, and in one school district, in Kentucky. The Court, in this case, determined the displays to be “undeniably a sacred text in the Jewish and Christian faiths,” and that they could be seen to favor those religions over others. As a result of this Lemon Test, the displays were ruled in violation of the Establishment Clause.

Weisman v. Nathan Bishop Middle School

In 1989, Robert Lee, the principal of the Nathan Bishop Middle School in Rhode Island, invited a Jewish Rabbi to pray at the school’s graduation ceremony. Student Deborah Weisman’s parents petitioned the court for a temporary injunction to prevent the Rabbi from speaking, on the basis that prayer at the commencement ceremony was unconstitutional. The court denied their request, and although the family attended the ceremony, and the Rabbi delivered the prayer, the family appealed their lawsuit with the First Circuit Court of Appeals. The appellate court ruled in the Weismans’ favor.

The school district disagreed with that decision and appealed the matter to the U.S. Supreme Court. The school argued that the prayer at the graduation ceremony did not target any specific religion. In addition, the school made the points that attendance at the ceremony was not mandatory, and that Deborah and her family did not have to attend and listen to the prayer. On June 4, 1992, the Supreme Court upheld the appellate court’s decision.

In the Court’s written decision, Justice Anthony Kennedy pointed out that the school’s principal had provided the Rabbi with a pamphlet with instructions on composing prayers for civic events. In doing so, the principal had actually controlled the content of the Rabbi’s prayer. Because it is likely that any religious leader would feel compelled to abide by such instruction, to avoid incurring the wrath of the State in such a matter.

Justice Kennedy further stated:

“It is a cornerstone principle of our Establishment Clause jurisprudence that it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government, and that is what the school officials attempted to do.”

The ruling in Weisman v. Nathan Bishop Middle School established that conducting prayer or other religious rituals or practices at such ceremonies as graduation, even if attendance at the activity is voluntary, violates the Establishment Clause, and is therefore unconstitutional.

Everson v. Board of Education

In the mid-1940s, the state of New Jersey authorized payments to local school boards for the transportation of students to and from both public and private schools. The funds for this endeavor would come from local tax monies. A man by the name of Arch R. Everson filed a lawsuit against the Board of Education claiming that, by using his tax money to indirectly reimburse parents for the cost of attending, or being transported to, a religious school violated both the New Jersey Constitution, and the Establishment Clause of the U.S. Constitution’s First Amendment.

After the New Jersey Court of Errors and Appeals ruled against Everson, he appealed his case to the U.S. Supreme Court. The case was heard on November 20, 1946 and the Court ruled that the state’s bill did not violate the Establishment Clause, as reimbursements were offered to all students regardless of religion. In the Court’s written decision, Justice Hugo Black offered a definition of the Establishment Clause that would govern similar decisions for many years to come, as he said:

“The ‘establishment of religion’ clause of the First Amendment means at least this: 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 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 entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. 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.”

Justice Black went on to say that the fact that payments were made to parents, and not to any religious institutions, neither the state constitution, nor the Establishment Clause, was not violated in any way.

Related Legal Terms and Issues

  • Coercion – The act of using force or intimidation to ensure compliance.
  • Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.
  • Ratification – The approval from the legislative branch of the government required to validate government agreements.
  • Secular – Attitudes, activities, or other things that do not have a religious basis.