The First Amendment includes two clauses dealing with religion: the Establishment Clause and the Free Exercise Clause. As discussed at § 32.1, the Establishment Clause requires some level of separation of church and state. The amount of separation required varies according to the Justices' decisionmaking style. As discussed at § 32.2, under the Free Exercise Clause, government actions discriminating against sincerely held religious beliefs trigger strict scrutiny. Non-discriminatory government regulations burdening religious practices trigger only minimum rational review.
The Establishment Clause of the First Amendment provides that "Congress shall make no law respecting an establishment of religion." Although this literally creates only a congressional barrier, the Establishment Clause has been incorporated into the 14th Amendment's Due Process Clause, like every other provision of the First Amendment, and thus imposes the same limits on states as on the federal government. As with the freedom of speech and the press, discussed at § 27.2.2 nn.111-12, this incorporation occurred for the Establishment and Free Exercise Clauses during the 1920s.1
Under the Establishment Clause, four different tests have been used to find an "establishment of religion." They are: (1) whether the government action has a sole purpose to advance religion, or a principal or primary effect to advance religion, or creates an excessive entanglement between church and state, the so-called Lemon test; (2) whether an objective observer would think the government action was an endorsement of religion; (3) whether the government action is coercing or proselytizing religion; and (4) whether the government action is an unreasonable accommodation of religion given our Nation's history and traditions. While not a perfect match for the Justices' views, in general the Lemon test reflects a liberal instrumentalist approach, the "endorsement" test reflects a natural law approach, the "coercion or proselytizing" test reflects a Holmesian approach, and the "history and traditions" test reflects a formalist approach.
As will be seen below, the Lemon test is still supported by the liberal instrumentalist Justices currently on the Court, Justices Stevens, Ginsburg, and Breyer, as the precedents decided under the Lemon test predominantly reflect the liberal policy of a strong separation of church and state. Justice O'Connor advocated replacing the Lemon test with an "endorsement" test, which Justice Souter is willing to follow. Justice Kennedy has focused more on the "coercion" or "proselytizing" of religion. Chief Justice Rehnquist, and Justices Scalia and Thomas, have wanted the analysis to focus more on specific historical examples of accommodation between church and state at the time the Constitution was ratified, as well as specific legislative and executive traditions since ratification. That will likely be the approach of Chief Justice Roberts and Justice Alito.
In his treatise, Commentaries on the Constitution of the United States,2 published in 1833, Joseph Story wrote of the First Amendment: "Probably at the time of the adoption of the constitution, and of the amendment to it, now under consideration, the general, if not the universal sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation." Story continued: "The real object of the amendment was, not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to a hierarchy the exclusive patronage of the national government. It thus cut off the means of religious persecution, (the vice and pest of former ages), and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age."
This view of religious freedom reflects a Stage 3 concrete customs and traditions approach. Such a Stage 3 vision is limited to the concrete prevailing attitudes of the times, as discussed at § 15.4.1 nn.50-58. However, even Justice Story understood that the Establishment Clause went far beyond responding to this limited vision. He noted in his treatise, "It was under a solemn consciousness of the dangers from ecclesiastical ambition, the bigotry of spiritual pride, and the intolerance of sects, thus exemplified in our domestic as well as in foreign annals, that it was deemed advisable to exclude from the national government all power to act upon the subject. . . . Thus, the whole power over the subject of religion is left exclusively to the State governments, to be acted upon according to their own sense of justice and the State constitutions; and the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils without any inquisition into their faith or mode of worship." Justice Story added, "But this alone would have been an imperfect security, if it had not been followed up by a declaration of the right of the free exercise of religion, and a prohibition . . . of all religious tests."3
He could also have noted that the official presidential oath of office provides, in Article II, §1, cl. 8, "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." Underscoring an intent to exclude religion from the national government's life, there is no "so help me God" final clause to the oath, despite the wide-spread use of that phrase then, as now, to swear in witnesses at trials and in other oaths of the time. In a later edition of Story's Commentaries, the editor added the following remark, viewed as consistent with Story's beliefs:
"[M]any regard it as a matter of serious concern that the Constitution does not expressly recognize the Supreme Being, or the fact that the nation is Christian, and are in favor of an amendment which shall embrace such recognition. The subject, however, appears as yet but slightly to influence the public mind."4 Whether or not one regards this as a matter of serious concern, it is clear that even strong supporters of Christianity believed that to be consistent with Story's views a constitutional amendment would be needed to commit the United States to the existence of a Supreme Being or to the country being a Christian nation. Even Justice Douglas' famous dictum in Zorach v. Clauson5that "we are a religious people whose institutions presuppose a Supreme Being" was stated in the context of applying a "strict neutrality" approach toward religion, and was used only to indicate that government did not have to be "hostile" toward religion to comply with the Establishment Clause.
This vision of strict government neutrality toward religion is reflective of a Stage 6 approach to religious freedom. As Justice Stevens noted in Wallace v. Jaffree,6 "Just as the right to speak and the right to refrain from speaking are complementary components of a broader concept of individual freedom of mind, so also the individual's freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed established by the majority. At one time it was thought that this right merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism. But when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all. This conclusion derives support not only from the interest in respecting the individual's freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of free and voluntary choice by the faithful, and from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects - or even intolerance among 'religions' - to encompass intolerance of the disbeliever and the uncertain."
At the time of its ratification, the Establishment Clause prevented the...