Religion, establishment of Summary

  • Last updated on November 11, 2022

An alliance or entanglement between government and religion prohibited by the First Amendment to the U.S. Constitution.

The Supreme Court made a relatively late entrance into the long debate about the appropriate relation between Church and state, separation ofreligion and government in the United States, not adding its voice until the 1940’s, more than one hundred and fifty years after the writing of the First AmendmentFirst Amendment, which restrains Congress from making any laws “respecting an establishment of religion.” In 1868 in the wake of the Civil War, the Reconstruction Congress proposed and the states ratified the Fourteenth Amendment to the Constitution. This amendment’s due process clause protects citizens from deprivation of life, liberty, or property without due process of law. In the 1940’s, the Court ruled that this clause made the provisions of the First Amendment applicable to the states, thus making state and local governments subject to the Constitution’s prohibition against establishment of religion.Incorporation doctrine

Aid to Religious Institutions

In its earliest significant interpretation of the establishment clause, the Court addressed the contentious issue of whether and to what extent the establishment clause limited government aid to private religious schools. In Everson v. Board of Education of Ewing Township[case]Everson v. Board of Education of Ewing Township[Everson v. Board of Education of Ewing Township] (1947), the Court considered the constitutionality of state reimbursements to parochial school parents for the expense of transporting their children to the schools. A closely divided Court eventually upheld these reimbursements, characterizing them as only incidentally aiding religious schools in a limited measure comparable to that entailed in police and fire protection for religious institutions. More important, though, in an opinion by Justice Hugo L. Black, the Court set forth the formulation of the establishment clause that would guide its various encounters with church-state problems in the future. At the very least, the Court insisted, the establishment clause means that government can neither establish a particular state or national church, prefer one religion over another, nor aid religion.

Finding principles to transform the sparse words of the establishment clause into a guide for the various intersections between government and religion in modern society was no easy task. Although Everson outlined in broad strokes the general contours of the establishment prohibition, it did not settle the many issues that still lay before the Court. The Court made its most enduring attempt to craft a more precise statement in 1971, when it eventually settled on what would thereafter be referred to as the Lemon test. Lemon v. Kurtzman[case]Lemon v. Kurtzman[Lemon v. Kurtzman] (1971) involved state laws that directly subsidized the salaries of teachersSalaries;teachers who taught secular subjects in parochial and other nonpublic schools. The Court found these laws unconstitutional on the basis of its conclusion that they offended a three-pronged test of compliance with the establishment clause. To satisfy the clause, a law must have a secular legislative purpose, have a primary effect that neither advances nor hinders religion, and not foster an excessive entanglement between government and religion. The state laws at issue in Lemon created an excessive entanglement between government and religious institutions, the Court concluded, since teachers even of secular subjects in parochial schools would be inextricably intertwined with the religious mission and activities of those schools. Any surveillance of teachers in parochial schools intended to prevent such an intertwining would itself constitute an impermissible entanglement.

Sustained criticism of the Lemon test proliferated in the following years, both on and off the Court. Critics argued that the test was in principle hostile to religion and that in practice it had produced inexplicable results. Under the test, for example, the Court had approved loans of secular textbooks to parochial schools but not loans of maps. Similarly, the Court in Everson had approved reimbursements of expenses of parents to transport their children to parochial schools, but it subsequently invalidated state programs that attempted to subsidize the cost of field trips taken by parochial school children. Notwithstanding this criticism, the Court declined to overrule Lemon explicitly, although during the 1980’s and 1990’s it increasingly formulated the establishment prohibition in terms other than those adopted in Lemon. Furthermore, a majority of the Court continued to construe the establishment clause as placing significant limits on direct aid to religious institutions.

Free Speech and the Establishment Clause

Speech, freedom of;establishment clause[establishment clause] In early establishment cases, the Court insisted that any significant aid to religion was forbidden by the First Amendment. However, in some contexts, this prohibition against aiding religion collided with notions of fairness and equality. Under the doctrine of free speech, for example, the Court has generally frowned on government laws and policies that discriminate against speech on the basis of its content. Suppose, then, that a university allows a wide assortment of student groups to use university classrooms after hours for meetings and that a group of religious students seeks to use a classroom. Allowing the religious students to use university facilities might be characterized as “aiding” religion; nevertheless, refusing to allow this use would clearly constitute discrimination against the religious speech of the students. In Widmar v. Vincent[case]Widmar v. Vincent[Widmar v. Vincent] (1981), the Court resolved this apparent conflict between the principles of free speech and the establishment clause by ruling in favor of the religious students. The establishment clause, according to the Court, did not prevent the use of university facilities by religious groups on equal terms with other groups. Accordingly, any discrimination against the religious groups in the access to generally available facilities was an impermissible discrimination against them.

The Widmar principle was regularly invoked by the Court during the 1980’s and 1990’s to uphold claims brought by religious believers alleging that they had been discriminated against in the name of the establishment clause. In Lamb’s Chapel v. Center Moriches Union Free School District[case]Lamb’s Chapel v. Center Moriches Union Free School District[Lamb’s Chapel v. Center Moriches Union Free School District] (1993), the Court declared unconstitutional a school’s discriminatory treatment of a religious group that sought to use school facilities after hours. The Court held that the school’s practice of allowing outside groups to use its facilities after hours for social or civic meetings prevented it from barring religious groups from similar uses. Moreover, in Rosenberger v. University of Virginia[case]Rosenberger v. University of Virginia[Rosenberger v. University of Virginia] (1995), the Court expanded the antidiscrimination principle of Widmar to include discrimination in the allocation of student fees. In Rosenberger, a Christian student group at the University of Virginia sought to take advantage of the university’s practice of paying the printing costs of student organizations who published printed materials. When the Christian student group sought payment for the costs of printing a proselytizing newsletter, the university refused, claiming that the establishment clause prohibited this kind of assistance to a religious organization. A majority of the Court disagreed, however, and concluded that the establishment clause did not bar the payments at issue and that the free speech clause prohibited the university’s discriminatory treatment of the religious group.

Religion and Public Schools

The Court’s recent enthusiasm for equality concerns has partially breached the so-called “wall of separation” between church and state that once characterized the Court’s pronouncements concerning the establishment clause. However, in one area, at least, this wall of separation remains formidable. Beginning with the school prayer decisions in the 1960’s, the Court has been especially vigilant in policing alliances between government and religion in the public schools.School prayer In Engel v. Vitale[case]Engel v. Vitale[Engel v. Vitale] (1962), the Court invalidated the practice of having public school children recite a prayer composed by state education officials. A year later, in Abington School District v. Schempp[case]Abington School District v. Schempp[Abington School District v. Schempp] (1963), the Court extended this holding to prohibit recitations of the Lord’s Prayer and devotional Bible readings in public school classrooms. Eventually, the Court would reach a similar conclusion regarding prayers offered at graduation ceremonies, finding in Lee v. Weisman[case]Lee v. Weisman[Lee v. Weisman] (1992) that they also violated the establishment clause.

After the first decisions in the school prayer cases, the Court developed the three-part Lemon test, which required that laws and official government policies have secular purposes and effects and not excessively entangle government and religion. When the Court entertained a new series of cases involving religion and public schools in the 1980’s, it focused especially on the secular purpose requirement. In the first case, Stone v. Graham [case]Stone v. Graham [Stone v. Graham](1980), the Court held unconstitutional the posting of copies of the Ten Commandments in public school classrooms. The school district in question argued that it had a legitimate secular purpose in calling attention to an important source of Western law. A majority of the Court concluded, however, that the principal justification behind the display of the Ten Commandments was a religious one and that this purpose offended the establishment clause. In the second case, Wallace v. Jaffree[case]Wallace v. Jaffree[Wallace v. Jaffree] (1985), the Court considered an Alabama statute that had authorized moments of silence in school classrooms for meditation and prayer. Although in separate opinions, a majority of the members of the Court suggested that moment of silence statutes might be constitutional in principle, the Court nevertheless concluded that the Alabama statute had been supported by an unconstitutional religious purpose of returning prayer to public schools. Finally, in Edwards v. Aguillard[case]Edwards v. Aguillard[Edwards v. Aguillard] (1987), the Court turned to the secular purpose requirement once again to invalidate a Louisiana statute that had mandated the teaching of creationism in schools that taught the theory of evolution.

Public Religious Ceremonies and Symbols

The vigilance with which the Court patrolled the boundaries of church and state in the public schools did not always manifest itself in other public contexts. The Court wrestled with the long-standing presence in American life of a measure of religiousness in public contexts and sought to harmonize this presence with its establishment doctrine. For example, in Marsh v. Chambers[case]Marsh v. Chambers[Marsh v. Chambers] (1983), the Court acknowledged that prayers in certain public contexts had been commonplace in U.S. history since its earliest days. The First Congress had appointed chaplains to its sessions with prayers, and Court sessions themselves began with the invocation, “God save the United States and this Honorable Court.” Faced with this historical precedent, a majority of the Court in an opinion by Chief Justice Warren E. Burger concluded that the Nebraska legislature’s practice of beginning its sessions with a prayer offered by a chaplain paid to do so did not offend the establishment clause. Even more controversial was the Court’s decision in Lynch v. Donnelly[case]Lynch v. Donnelly[Lynch v. Donnelly] (1984), which upheld a city’s display of the traditional Christian nativity scene during the Christmas season. Chief Justice Burger again announced the Court’s opinion and declared that the city had a secular purpose in sponsoring the nativity scene to celebrate the Christmas holiday and to depict the origins of the holiday. The decision was closely divided, however, and Justice Sandra Day O’Connor provided the crucial fifth vote needed to reach this result. Although she agreed with the result articulated by the chief justice, in her opinion, the presence along with the nativity scene of other holiday symbols inoculated the nativity scene from an establishment violation. Because the nativity scene was set among such items as a Santa Claus house, reindeer and a sleigh, candy-striped poles, a Christmas tree, carolers, and lights, it could not be seen as an endorsement of a particular religious faith, according to Justice O’Connor. Five years later, in Allegheny County v. American Civil Liberties Union Greater Pittsburgh Chapter[case]Allegheny County v. American Civil Liberties Union Greater Pittsburgh Chapter[Allegheny County v. American Civil Liberties Union Greater Pittsburgh Chapter] (1989), the Court would reach a different result concerning a nativity scene displayed alone on public property during the Christmas season. Set in this context, the nativity scene amounted to an endorsement of Christianity according to a majority of the Court and therefore violated the establishment clause.

The Meaning of the Establishment of Religion

The last two decades of the twentieth century saw increasing dissatisfaction on the Court with its establishment doctrine. The three-part Lemon test that had governed the Court’s resolution of establishment issues for a time seemed less capable of continuing to command assent among a majority of justices. In this state of disarray, individual members of the Court attempted to articulate new understandings of the antiestablishment principle. Justice William H. Rehnquist, for example, suggested in his dissent to the Court’s decision in Wallace v. Jaffree that the establishment clause should be understood only to prevent government preference for one religion over another. So long as government endorsed or aided religion in general, he contended, rather than endorsing or aiding a particular religion, then the establishment clause was not violated. Justice Anthony M. Kennedy, in the early 1990’s, seemed to propose his own key to understanding the establishment clause. In Lee v. Weisman, for example, his opinion for the Court focused on the coerciveness of a graduation prayer on those who did not share the religious tenets expressed in the prayer. This emphasis seemed to suggest that noncoercive government alliances with religion might survive an establishment clause challenge. Finally, and most important, in the mid-1980’s Justice Sandra Day O’Connor proposed that the hallmark of an establishment clause violation was its purpose or effect in endorsing religion generally over nonreligion or in endorsing a particular religion over others. She first elaborated this no-endorsement vision of the establishment clause in a series of concurring opinions, beginning with the first nativity scene case, Lynch v. Donnelly. By the end of the 1980’s, however, her no-endorsement test seemed to have captured a majority view on the Court because the Court applied her test to resolve another nativity scene issue in Allegheny County v. American Civil Liberties Union, Greater Pittsburgh Chapter. However, during the 1990’s, Justice O’Connor’s vision of the establishment clause was not featured again in opinions for the Court. All during this decade, no majority ever coalesced to overrule the three-part test of Lemon. Instead, the justices were fragmented in their views of the establishment clause, agreeing sometimes on the result in particular cases but seldom agreeing on the broader principles that explained these results.

Further Reading
  • Religion is a subject well served by studies of every aspect of its place in American history, government, and society. A good starting point for research is Edwin S. Gaustad’s Proclaim Liberty Throughout All the Land: A History of Church and State in America (New York: Oxford University Press, 2003). Among the many fine examinations of constitutional interpretations of the First Amendment’s religion clauses are Melvin I. Urofsky’s Religious Freedom: Rights and Liberties Under the Law (Santa Barbara, Calif.: ABC-Clio, 2002), Kermit L. Hall’s Conscience and Belief: The Supreme Court and Religion (New York: Garland, 2000), Daniel O. Conkle’s Constitutional Law: The Religion Clauses (New York: Foundation Press, 2003), and Phillip E. Hammond’s Religion on Trial: How Supreme Court Trends Threaten the Freedom of Conscience in America (Walnut Creek, Calif.: AltaMira Press, 2004). Comprehensive collections of Court decisions relating to the First Amendment’s religion clauses are James John Jurinski’s Religion on Trial: A Handbook with Cases, Laws, and Documents (Santa Barbara, Calif.: ABC-Clio, 2003) and Toward Benevolent Neutrality: Church, State, and the Supreme Court, edited by Ronald B. Flowers and Robert T. Miller (Waco, Tex.: Baylor University Press, 1998). Similar, though less inclusive collections of Court cases may be found in The Believer and the Powers That Are: Cases, History, and Other Data Bearing on the Relation of Religion and Government, by John Thomas Noonan, Jr. (New York: Macmillan, 1987), and Religious Liberty in the Supreme Court: The Cases That Define the Debate over Church and State, edited by Terry Eastland (Grand Rapids, Mich.: Wm. B. Eerdmans, 1995). The Court has regularly consulted the history of church-state relations in colonial and revolutionary America to inform its interpretation of the establishment clause. Thomas Curry’s The First Freedoms: Church and State in America to the Passage of the First Amendment (New York: Oxford University Press, 1986) contains an excellent treatment of these periods. A Nation Dedicated to Religious Liberty: The Constitutional Heritage of the Religion Clauses, by Arlin M. Adams and Charles J. Emmerich (Philadelphia: University of Pennsylvania Press, 1990), combines both coverage of the historical background of the religion clauses and their current interpretation by the Court.
  • For an influential argument that the Court has given too prominent a place to religious skepticism in its interpretation of the religion clauses, see Mark DeWolfe Howe’s The Garden and the Wilderness: Religion and Government in American Constitutional History (Chicago: University of Chicago Press, 1965). An opposing viewpoint may be found in The Godless Constitution: The Case Against Religious Correctness, by Isaac Kramnick and R. Laurence Moore (New York: W. W. Norton, 1996). Everson Revisited: Religion, Education, and Law at the Crossroads, edited by Jo Renee Formicola and Hubert Morken (Lanham, Md.: Rowman & Littlefield, 1997), explores the significance and future of the Court’s seminal establishment clause decision in Everson v. Board of Education. Robert S. Alley’s School Prayer: The Court, the Congress, and the First Amendment (Buffalo, N.Y.: Prometheus Books, 1994) provides an evenhanded treatment of one of the most contentious areas of the Court’s establishment clause law. The increasing prominence of the principle of equality over that of separation is explored and supported in Equal Treatment of Religion in a Pluralistic Society, edited by Stephen V. Monsma and J. Christopher Soper (Grand Rapids, Mich.: Wm. B. Eerdmans, 1998). This movement is contrasted with the case for nearly total separation of government and religion made by Marvin E. Frankel, a former New York federal judge, in Faith and Freedom: Religious Liberty in America (New York: Hill & Wang, 1994).

Abington School District v. Schempp

Agostini v. Felton

Allegheny County v. American Civil Liberties Union Greater Pittsburgh Chapter

Edwards v. Aguillard

Engel v. Vitale

Everson v. Board of Education of Ewing Township

Evolution and creationism

Fifteenth Amendment

Lemon v. Kurtzman

O’Connor, Sandra Day

Released time

Religion, freedom of

School prayer

Zorach v. Clauson

Categories: History