The Establishment Clause

• Pages: 281-301
• Author: Daniel A. Farber

281

Chapter 14

THE ESTABLISHMENT CLAUSE

The Supreme Court struggled with the interpre tation of the

Establishment Clause for decades, resulting in doctrinal confusion.

The Roberts Court seems to be moving toward a more coherent

approach, which could involve a dramatic narrowing of prior

restrictions on state support for religion. At present, however, it is

unclear how much of the prior caselaw will be cleared away. This

chapter explains the evolution of judicial doctrine on this issue and

highlights the areas where future change seems most likely.

Section I covers the basics: the origins and purposes of the

Clause, plus a quick overview of doctrinal evolutio n and current

schools of thought. Section II describes three tests that h ave had

some support on the Court, while Section III traces the doctrinal

evolution in some crucial areas (religion in public and private schools,

and religious symbolism on government property). Section IV probes

the most ve xing Establishment Clause problem: to what extent c an

the government accommodate the burdens placed on religious

practice by its programs, without impermissibly aiding religion?

Since this chapter is also the end of the book, it closes with a few brief

thoughts about the present state of First Amendment law.

I. The Basics

To understand current disputes over the Establishment Clause,

it is necessary to know something about how the debate has

developed. We will “begin at the beginning” w ith the history leading

up to adoption of the Clause, looking also at the conflicting less ons

that have been drawn from that history. Then, we will try to get a

quick sense of how the modern Supreme Court’s view of the issues

has evolved. Finally, we will examine the two most prominent schools

of thought among contemporary commentators on this issue.

A. The Origin of the Establishment Clause

The history of religious freedom was sketched in Chapter 13,

and much of what is said there is also helpful in discussing the

Establishment Clause. Only a little needs to be added relating

specifically to the Establishment Clause.

In the colonies, statutes often regulated conduct for religious

reasons. For instance, Massachusetts banned “unnecessary walking”

on the Sabbath, and Connecticut provided for public whipping as

punishment for “cursing or reproaching the true God.” Connecticut

also required every household to keep a Bible. New England states

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RELIGION

Pt. IV

were especially aggressive in financial support for churches. In most,

however, residents were entitled to vote on which sect to support, and

dissenters were allowed to subscribe to another Protestant church

instead. Opponents of the system included Baptists and followers of

Roger Williams, who believed that the church was corrupted by state

support. Nevertheless, these systems did not entirely disappear until

the early Nineteenth Century.

The most notable struggle over establishment took place in

Virginia. Thomas Jefferson criticized the Virginia legal regime for

limiting the rights of dissenters. For instance, non-believers in the

Trinity could not hold any public office and might even be faced with

a loss of property rights. Jefferson, a deist, viewed this as a form of

“religious slavery.” Following independence, a struggle took place

between advocates of establishment (most notably Patrick Henry)

and opponents such as Jefferson, Mason, and Madison. The

advocates kept trying to expand the Anglican church’s privileges,

while the opponents tried to eliminate them. In 1784, the supporters

brought forward legislation requiring residents to support a

Christian sect, whether Anglican or ano ther chosen by the

individual. A contribution to the schools was allowed as a fallback

option for individuals who could find no appropriate religious

beneficiary.

Mason and others asked Madison to draft a response, and he

replied with his famous “Memorial and Remonstrance Against

Religious Assessments.” Madison argued that a true religion would

not need the support of law, that no one should be taxed to support a

religious institution of any kind, and tha t establishments were

incompatible with religious free dom. He also criticized the Virginia

Bill for suppo rting only Christian churches: “Who does not see that

the same authority which can establish Christianity, in exclusion of

all other Religions, may establish with the same ease any particular

sect of Christians, in exclusion of all other Sects.” Madison also held

that any forced religious contribution was a “ signal of persecution”

that “degrades from the equal rank of Citizens all those whose

opinions in Religion do not bend to those of the Legislative authority.”

The upshot was the enactment of the Virginia Bill for Religious

Liberty drafted by Thomas Jefferson. The preamble pro claims that

“Almighty God hath created the mind free; that all attempts to

influence it by temporal punishments or burthens, or by civil

incapacitations, tend only to beget habits of hypocrisy and meanness,

and are a departure from the plan of the Holy author of our religion,

who being Lord both of body and mind, yet chose not to propagate it

by coercions on either.” The preamble continued that: