Establishment of Religion

Author:Leonard W. Levy

Page 927

The FIRST AMENDMENT begins with the clause, "Congress shall make no law respecting an establishment of religion.?" There are two basic interpretations of what the framers meant by this clause. In EVERSON V. BOARD OF EDUCATION (1947), the first decision on the clause, the Supreme Court unanimously adopted the broad interpretation, although the Justices then and thereafter disagreed on its application. (See SEPARATION OF CHURCH AND STATE.) Justice HUGO L. BLACK declared that the clause means not only that government cannot set up a church but also that government cannot aid all religions impartially or levy a tax for the support of any religious activities, institutions, or practices. "In the words of [ THOMAS ] JEFFERSON, " Black said, "the clause against establishment of religion by laws was intended to erect "a wall of separation between Church and State."

EDWARD S. CORWIN, a distinguished constitutional scholar who espoused the narrow view of the clause, asserted that the Court's interpretation was "untrue historically." What the clause does, he wrote, "and all that it does, is to forbid Congress to give any religious faith, sect, or denomination preferred status.? The historical record shows beyond peradventure that the core idea of "an establishment of religion' comprises the idea of preference; and that any act of public authority favorable to religion in general cannot, without manifest falsification of history, be brought under the ban of that phase" (Corwin, "Supreme Court as National School Board," pp. 10, 20). Justice POTTER STEWART, dissenting in ENGEL V. VITALE (1962), endorsed the narrow view when he noted that a nondenominational school prayer did not confront the Court with "the establishment of a state church" or an "official religion."

The debate in the First Congress, which proposed the First Amendment, provides support for neither the broad nor the narrow interpretation. The history of the drafting of the clause, however, is revealing. Congress carefully considered and rejected various phrasings that embraced the narrow interpretation. At bottom the amendment was an expression of the intention of the Framers of the Constitution to prevent Congress from acting in the field of religion. The "great object" of the BILL OF RIGHTS, JAMES MADISON, had said, when introducing his draft of amendments to the House, was to "limit and qualify the powers of Government" for the purpose of making certain that...

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