The Establishment Clause


Europe, the source of many immigrants to the American colonies, is defined by a history of interaction between the church and the state. In 1095, European noblemen responded to the pleas of the Catholic Pope Urban II and embarked on the First Crusade. The Catholic Church and European leaders maintained a strong relationship throughout the Middle Ages. Monarchs in England and France believed that their authority to lead came from God under the "Divine Right of Kings." In Spain, the Catholic monarchy started the Inquisition in the 15th century to expel Jewish and Muslim people from the state or convert them to Catholicism through torture and violence.

The Protestant Reformation in the 16th century further shaped the relationship between church and state. In Germany, Lutheranism appealed to princes and became the official religion for many German states. In 1534, King Henry VIII of England split from the Catholic Church, established the Anglican faith as the state religion of England, the Church of England as the state church and himself as the head of the church. In 1618, the Thirty Year's War resulted from growing tensions between Protestant and Catholic forces in Germany and parts of mainland Europe.

Seminal events like the Protestant Reformation and the Thirty Year's War displayed the lack of religious uniformity in Europe. Minority religious groups suffered from state sanctioned persecution and violence, and sought an escape. For some, immigrating to colonies in North America presented that opportunity. In 1630, Puritans left England to establish the Massachusetts Bay Colony and escape persecution from the Anglican Church. In 1681, William Penn founded the Pennsylvania colony to provide a safe haven for the persecuted Quakers, and the colony's policy of tolerance attracted other persecuted groups like the Moravians.

By 1776, most of the 13 colonies developed conflicting stances on the relationship between church and state. For example, Pennsylvania's 1776 constitution prohibited state interference with religious freedom, but only extended rights to those who believed "in the being of a God." Similarly, New Jersey forbid the establishment of religion, but it only protected the rights of Protestants. At the extremes, the New York constitution banned those in "the service of God" from holding elected office while the 1777 Georgia constitution required that elected officials be Protestants. Likewise, Maryland only allowed Christians to hold elected office.

At the conclusion of the American Revolution, the states favored the free exercise of religion, but it had no uniform policy on the establishment of religion. The Articles of Confederation, passed in 1781, was silent on the issue of the government endorsing a particular religion. The US Constitution, successor to the Articles of Confederation, remained silent until its Framers added the Bill of Rights to ensure ratification. The First Amendment, part of the Bill of Rights, stated "Congress shall make no law respecting an establishment of religion." Thomas Jefferson commented on the policy behind the Establishment Clause, stating that one's religion is a private matter protected by "building a wall of separation between Church & State."

Litigation Outside of the Supreme Court

Federal courts have deliberated a surfeit of cases implicating the Establishment Clause and recent contests have focused on both the relationships between private groups exercising religious customs and government action and possible endorsement. As evinced by this snapshot of recent developments, the federal courts questions pertaining to various religious practices in relation to the Establishment Clause. Town of Greece v. Galloway emanates from the US Court of Appeals for the Second Circuit, which found the town's legislative prayer to be unconstitutional.

In July 2012, the US Court of Appeals for the Fourth Circuit upheld a South Carolina program allowing public high school students to earn credit for religious courses taken off campus during the school day.

In July 2011, courthouses in Florida and Ohio were barred from displaying the Ten Commandments under the First Amendment. In both cases, the religious material was defended as freedom of speech, but because it received the benefit of government funds, it created an unacceptable spectre of an endorsement of religion, even when it was displayed next to excerpts from agnostic philosophies.

In April 2010, the US District Court for the Western District of Wisconsin ruled that the national day of prayer violated the Establishment Clause because it exceeded an "acknowledgment" of religion to the point of government-backed encouragement that Americans engage in non-secular activities.

In March 2010, the US Court of Appeals for the District of Columbia Circuit upheld the phrase "so help me God" in the presidential oath when it was contested by atheist organizations. In the same month, the US Court of Appeals for the Ninth Circuit upheld the Pledge of Allegiance when it is run by school teachers, and the use of the phrase "In God We Trust" on US currency.

The US Court of Appeals for the Seventh Circuit in 2006 vacated a trial court decision from 2004 that barred the Freedom From Religion Foundation from pursuing a lawsuit against President George Bush's faith-based initiatives.

In January 2005, the US Court of Appeals for the Fifth Circuit ordered the removal of a Bible from a display outside of a Texas Courthouse. The display was funded by the private homeless mission and struck down for creating the appearance of a government endorsement of faith.

Supreme Court Treatment

On November 6, 2013, the US Supreme Court heard [PDF] arguments on the constitutionality of legislative prayer. The US Court of Appeals for the Second Circuit ruled in Town of Greece v. Galloway that an opening prayer in a town meeting amounted to the government endorsing Christianity. Therefore, the town's practice was in violation of the Establishment Clause. The Supreme Court's jurisprudence on the subject ranges from school prayers to nativity scenes.

In Lee v. Weisman, ruled that opening and closing prayers at a high school graduation ceremony were incongruous with the Establishment Clause. The First Amendment's Free Exercise Clause, which protects the freedom to practice the religion of one's choice, was not protective of the practice. Justice Sandra Day O'Connor opined that government accommodation of religious practice was only permissible when it removed bars to free exercise. The permissibility of prayer at graduation did not disbar free exercise of religion and its omission did not impose a burden on religious free exercise.

Justice O'Connor's opinion reflected the court's 1947 decision in Everson v. Board of Education of the Township of Ewing, where it ruled, ruled a state statute that reimbursed school bus taxes to parents of children bussed to parochial schools was constitutional pursuant to the Free Exercise Clause. This clause directly follows the Establishment Clause and analysis of one often prescribes harmony between the two.The statute was held to be a protection from obstacles to religious practice, not a state aid of religion. Reimbursement was necessary in order for the state government's compliance of the Establishment Clause because it prevented a disadvantage to religious exercise. This marked the first time the Establishment Clause was held as binding on the states through the Fourteenth Amendment's Due Process Clause.

The court took a different stance on parochial reimbursement in it's 1971 decision in Lemon v. Kurtzman. Reimbursement for the secular dimensions of the parochial schools went against the Establishment Clause. The ruling introduced the Lemon Test, which requires the government to legislate only secularly, neither help nor hamper religious practice and not become infused in religious matters. The court deemed Catholic schools to be too large a part of the church's functions for the government to be involved. Government financial assistance of religious practice was first reviewed by the court in Bradfield v. Roberts in 1899. A Roman Catholic hospital was allowed financial assistance from the government because the funding was for a secular activity. The Court ruled religious affiliation does not preclude government funding so long as the monies are allocated to secular services.

The Lemon Test was applied in the 1989 case of County of Allegheny v. American Civil Liberties Union. The court decided that a nativity scene and menorah set outside government buildings violated the Establishment Clause by promoting religion. This contradicted the 1984 case Lynch v. Donnelly, the court held that a nativity scene in a park in conjunction with a "seasons greetings" banner and Santa Claus figure did not violate the Clause because no specific religion was promoted.

In 2005, the court heard two cases involving placement of the Ten Commandments outside of government buildings. In Van Orden v. Perry, the court ruled [PDF] the placement to be legal because there were other symbols on the stone medium and for their inherent historical value. The Ten Commandments in McCreary County v. American Civil Liberty Union [PDF] were deemed illegal because they were purely religious in nature. In both cases, the defendants wanted the court to do away with the Lemon Test, but the tool of review withstood.


11/06/2013: Supreme Court heard oral arguments on legislative prayer.

07/03/2012: Federal judge upheld South Carolina program awarding credit for off-campus religious courses.

01/17/2012: Supreme Court declined to rule on board meeting prayers in North Carolina.

01/11/2012: Supreme Court upheld ADA ministerial exception.

07/15/2011: Federal judge ordered Florida courthouse to remove Ten Commandments monument.

05/07/2012: Federal appeals court rejected bid to remove "God" from presidential oath.

10/15/2010: Federal appeals court upheld Illinois school moment of silence law.

04/28/2010: Supreme Court ruled on religious display on Mojave National Preserve.

04/15/2010: Federal judge ruled National Day of Prayer unconstitutional.

03/11/2010: Ninth Circuit upheld Pledge of Allegiance in public schools.

11/10/2009: Federal judge ruled Christian-themed license plates unconstitutional.

06/13/2006: Federal judge dismissed suit challenging inclusion of "In God We Trust" on US currency.

12/20/2005: Federal judge ruled against "intelligent design" being taught in public schools.


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