Establishment Clause

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Establishment Clause

Sections within this essay:

Background
Tests Used to Determine Constitutional Violations
Religious Education in Public Schools
School Prayer
Creationism, Evolution, and Intelligent Design
School Vouchers

Religious Displays on Governmental Property
Happy Holidays
Ten Commandments

Governmental Assistance or Benefits
National Symbols
Blue Laws and Sunday Closings
First Amendment CenterFirst Amendment Center at Vanderbilt University

Background

The First Amendment to the U.S. Constitution states, in part, that "Congress shall make no law respecting an establishment of religion, or prohibiting the exercise thereof." This two-part protection guarantees not only religious liberty, but also freedom from governmental action that purports to establish or support religious causes. The Establishment Clause, or "establishment of religion" clause, is most often invoked in constitutional challenges regarding separation of church and state, whereas the "free exercise" clause is invoked when challenging governmental interference with personal and fundamental religious freedom. The Fourteenth Amendment makes these protections applicable to the states and subdivisions thereof.

In its purest form, the Establishment clause prohibits the state or federal government from establishing or setting up a church or religion as the official state or federal religion; it is said to provide "a wall of separation between church and state," in the words of Thomas Jefferson. Several U.S. Supreme Court justices, including prior long-term Chief Justice William Rehnquist, believed that the literal translation of the term meant that it only intended to prohibit the establishment of a single national church or the preference of one religion over another. This interpretation was premised on the historical context of the Constitution being drawn up by colonists fleeing oppression under the national Church of England. But other justices interpret a broader application of the term, to include prohibiting the government from promoting religion in general. This broader interpretation prohibits the government from passing laws that tend to favor or show preference for one or all religions, or tend to force belief or disbelief in any particular religion.

Accordingly, over the years, courts have eked out parameters of what government can or cannot do with respect to religion. For example, courts of law cannot adjudicate religious/ecclesiastical questions, nor can a religious test be used for election to public office. Likewise, providing testimony under oath need not be done by using a Bible and swearing before God; persons may substitute with an "affirmation," a solemn declaration that does not invoke or mention God.

However, in reality, constitutional challenges invoking the Establishment clause tend to be more complicated and/or subtle. Judicial interpretation of the Establishment clause is an ever-evolving area of law, made more so in the 20th and 21st centuries because of the increasing cultural and ethnic diversity of the American population, as well as advancement in scientific technology that speaks to creationism and evolution.

Tests Used to Determine Constitutional Violations

To pass muster under the Establishment clause, governmental actions are scrutinized by courts, using a few key tests. One of the most often used and quoted is that outlined in the U.S. Supreme Court case of Lemon v. Kurtzman, (1971). In that case, the Court struck down a Pennsylvania state program providing aid to religious elementary and secondary schools, in the form of reimbursement for salaries, textbooks, and instructional materials. However, payment was premised upon the condition, among others, that the courses taught be secular in nature, similar to those presented in the public schools. Notwithstanding, the high court was presented with the issue of whether payment of salary supplements was unconstitutional under the Establishment clause.

The Lemon Court, under Chief Justice Warren Burger, outlined a three-prong test to be used in such challenges. To pass constitutional muster, a government action: (1) must have a secular legislative purpose; (2) its principal or primary effect must neither advance nor inhibit religion; and (3) it must not foster an excessive governmental entanglement with religion. The Court found the Pennsylvania school aid passed the first two prongs, but also found there was excessive entanglement with religion in its cumulative effect. While religion and government must co-exist in society and normally will interact at some points, they should not so overlap and intertwine as to cause persons to have difficulty differentiating between the two.

In 1997, the Supreme Court modified the,Lemon, test in its Agostini v. Felton, decision. It combined the last two prongs (effect and entanglement), now using only the "purpose" and "effects" prongs. It still used the "excessive entanglement" criterion, but within the context of determining whether a governmental action had a primary effect of advancing religion.

In other Establishment clause cases, courts also look to a test first advanced by Justice Anthony Kennedy, known as the "coercion" test. Under this test, government actions would be deemed constitutional unless they (1) provided direct aid to religion in a way that tended to establish a state church; or (2) coerced people to support or participate in religion against their will.

Still another, the "endorsement test" advanced by Justice Sandra Day O'Connor, asks whether the government action amounts to an endorsement of religion. Her primary focus was whether a government action conveyed "a message to non-adherents [of religion] that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community," (from her dissenting opinion in the 1984 case of Lynch v. Donnelly). The endorsement test has been somewhat subsumed into the remaining Lemon prongs. The endorsement test is often used to consider cases in which the government is engaged in expressive activities such as graduation prayers, religious signs on government property, etc.

Religious Education in Public Schools

Religious instruction in public schools is prohibited under the Establishment clause. But seldom is the constitutional challenge so well defined. Instead, questions arise about the nature of the instruction (whether it is truly "religious") or what constitutes instruction or teaching.

In 1948, the U.S. Supreme Court struck down "released time" programs in public schools, which allowed early release from classes in order to receive religious instruction. However, the religious instruction was conducted elsewhere in the same public school buildings. The Court found that, in essence, the government was allowing publicly funded facilities to be used for the teaching of specific religious doctrine.

School Prayer

For almost one hundred and fifty years, courts permitted schools to require student prayer. Finally, in 1963, the U.S. Supreme Court held that requiring prayer or Bible study in public schools, even if generalized and nondenominational, violated the Establishment clause of the First Amendment (Abington School District v. Schempp). Since then, various school systems have attempted to comply with this holding, but still allow some freedom. In the latter part of the 20th century and the early 2000s, the high court has increasingly been petitioned to refine and clarify the parameters of separation of church and state as it relates to prayer. While early cases prohibited praying out loud, later decisions also forbade compelled moments of silence or meditation. In Wallace v. Jaffe (1985), the Court banned a compelled "daily moment of silence" during which students were "encouraged" to use the time for silent prayer. In Lee v. Weisman (1992), the Court struck down invocations at public school graduation ceremonies, on the grounds that they had the effect of advancing religion and promoting excessive entanglement between church and state.

In the 1990s, the Supreme Court issued some decisions that seemed to suggest the need or desire to carve some exceptions out of the stricter separation of church and state decisions. In Westside Community Board Of Educ. v. Mergens (1990), the Court held that if a school provided its facilities to some groups during off-hours, it must also make those facilities available to religious groups as well. In another case, the Court held that allowing a public employee to serve as a sign-language interpreter for a deaf child attending a religious school was permissible, even though the public employee would be spending at least part of his time interpreting religious beliefs and translating religious teachings.

Creationism, Evolution, and Intelligent Design

Despite the 1925 Scopes "Monkey Trial," it was not until much later that a formal approach to teaching evolution was outlined. The general rule, set down in the 1987 U.S. Supreme Court case of Edwards v. Aguillard is that evolution must only be taught as scientific fact. Creationism may not be taught as a science. Moreover, the Court struck down a law requiring both theories to be taught side by side in public schools. In Freiler v. Tangipahoa Parish Board Of Educ. (cert. denied 2000), the appellate court struck down a Louisiana school board rule mandating that teachers read a disclaimer to students stating that the teaching of evolution was "not intended to influence or dissuade the Biblical version of Creation or any other concept."

In the Aguillard case (above), the high court offered some guidance, by stating that "teaching a variety of scientific theories about the origins of humankind to school children might be validly done with the clear secular intent of enhancing the effectiveness of science instruction." In the 1990s, some teachers and school boards began telling students (by presenting only scientific evidence that supported it) about the scientific theory of "Intelligent Design." This theory, vouched for by many world-renowned scientists, does not displace Darwinism's focus on evolution, but rather adds to it the scientific theory of an organized, planned, and designed evolution far too complex for coincidence or happenstance. Critics have belittled Intelligent Design as merely a veiled teaching of creationism, but legal scholars believe its scientific basis and arguments actually fulfill the Supreme Court's mandate. As of2005, the constitutionality of teaching a scientific theory of Intelligent Design had not come before the high court.

School Vouchers

As mentioned, in matters of government expression, courts often look to the endorsement test, but when involving the use of government funds, courts are most interested in determining the neutrality of the financial aid. By determining whether the governmental action is neutral in treatment, the Supreme Court has allowed religious schools to participate in generally-available state voucher programs. It also has allowed states to provide computers to both public and religious schools, as well as provide remedial teachers to low-achieving students, whether attending religious or public schools. Mitchell v. Helms (2000), Zelman v. Simmons-Harris (2002), Under this analysis, the faith-based initiatives of the Bush administration, when structured appropriately, appeared to conform to constitutional standards.

Religious Displays on Governmental Property

Happy Holidays

Nativity scenes and other religious displays are generally permitted on public property if used in conjunction with the secular celebration of holidays. A publicly-sponsored Nativity scene standing alone is unconstitutional. The same holds true for publicly sponsored Christmas pageants with religious music, unless other secular holiday songs are included. Interestingly, privately-sponsored nativity scenes displayed on public property are constitutional, even in the absence of other secular symbols. However, equal access must be provided to competing interests/symbols, and to avoid confusion or challenge, public acknowledgment of the private sponsorship should be posted conspicuously.

The first big legal case resolving nativity scenes was Lynch v. Donnely (1984), a 5-4 decision allowing the display of a city-sponsored creche scene in a public park, alongside other secular symbols of the holiday (Christmas tree, Santa Claus, and cut-out figures of a clown, teddy bear, and dancing elephant). In 1989, the Court ruled against a different nativity display (in another narrow 5-4 decision), striking the privately-owned nativity scene displayed in a public county courthouse because the scene stood alone, without the display of other secular holiday symbols,—making this one indisputably religious in nature. Allegheny County v. ACLU (1984)

Ten Commandments

As early as 1980, the Supreme Court had banned the posting of the Ten Commandments on public school walls. Stone v. Graham But the Court continued to be pressed into making determinations about displays in other settings. Proponents for display argued that the Ten Commandments were nondenominational and were part of the historical underpinnings of America: a moral reminder of right and wrong applicable to all citizens. Opponents argued that it was an impermissible endorsement of Judeo-Christian religion.

The issue was revisited in 2005, with two highly-publicized cases before the Supreme Court. Both decisions evidenced a split court; both decisions were 5-4 rulings. In Van Orden v. Perry, the high court narrowly ruled in favor of allowing the Ten Commandments to be displayed at the Texas state capitol. But in McCreary County, Kentucky v. ACLU, the Court, again narrowly, ruled that they could not be displayed (in framed copies) at two Kentucky court houses. In the Texas case, the six-foot high granite monument of the Ten Commandments was one among several national and historical markers spread across 22 acres of the state capitol grounds. The Court noted that 40 years had passed, without challenge, since the monument was first erected in the 1960s. The Court concluded that the Texas display represented a mixed but primarily non-religious purpose.

Conversely, the framed copies of the Ten Commandments displayed inside Kentucky courthouses stemmed from a governmental effort "substantially to promote religion," concluded the Court. (In an image that hangs above the courtroom in the Supreme Court, Moses is seen carrying the Ten Commandments. However, the tablets' text is not shown, and he is one of many historical figures depicted, including Mohammed and Confucius.)

Governmental Assistance or Benefits

Financial aid given indiscriminately to all parents of school children (whether in public or religious schools) has tended to pass muster when challenged in court. If the aid is limited or directed to only parochial schools, it will generally fail for inability to show that the aid or assistance was limited to a non-religious purpose.

Paying bus fares and lending secular text books to parochial and private schools do not violate the Establishment clause. However, direct grants, including the supplementing of salaries is prohibited.

National Symbols

Legal scholars have continued to dissect Supreme Court decisions to reach some palpable and instructive guidance in matters relating to the separation of church and state when it involves national symbols created by colonial Americans and steeped in historical symbolism. U.S. currency carries the motto "In God We Trust," and most school students (at least in the elementary grades) begin each day reciting the Pledge of Allegiance to "one nation, under God." Each meeting of the U.S. Congress begins with an invocation, which the Supreme Court found quite permissible, since the very first Congress paid a chaplain to provide an opening prayer.

Most legal authorities distinguish a general acknowledgement of God from the acknowledgement of a particular religious belief. They also make the distinction between invocations at the commencement of a congressional session, attended by adults, and school prayer, which may involve teachers and other students exerting influence over children more vulnerable to external suggestion or example.

In West Virginia Board Of Educ. v. Barnette (1943), the parents of Jehovah's Witnesses school children brought suit after their children were expelled from West Virginia public schools. A tenet of that faith is the commandment against bowing down to "graven images," which practitioners believe forbids them to recite the Pledge of Allegiance to one nation, under God. The West Virginia Board of Education defended that the children who refused to recite the Pledge disrupted the order and discipline of the classroom, which the board had a responsibility to maintain. The U.S. Supreme Court, reversing an earlier decision that resulted in gross harassment toward Witnesses, ruled that the expulsion of the chil-dren was an unjustified intrusion upon their religious freedom and was tantamount to a governmental censure of their religious beliefs.

In 2004, the issue again came before the Court in Elk Grove Unified School District v. Newdow. However, the Court dismissed this case on the issue of standing, without ever reaching the substantive issue. Nevertheless, its decision served to reverse a trial court decision that teacher-led recitation of the Pledge was unconstitutional. The case had been brought by an atheist who objected to his daughter having to listen to "one nation under God" in the Pledge. Since the divorced plaintiff did not have custody of his daughter, the Court ruled he had no standing and could not speak for his daughter in court.

Blue Laws and Sunday Closings

Generally, Sunday closing laws (blue laws) have been upheld, because they were deemed to have been created to provide a day of rest and not a day of religious observation.

DeWolf, David K., Stephen C. Meyer, and Mark E. DeForrest. "Intelligent Design in Public School Science Curricula: A Legal Guidebook." 1999. Richardson, TX: Foundation for Thought and Ethics.

Larson, Edward. "Summer for the Gods: The Scopes Trial and America's Continuing Debate Over Science and Religion." 1997, published by Basic Books.

"Religious Liberty in Public Life: the Establishment clause." Published by the First Amendment Center. Undated. Available at http://www.firstamendmentcenter.org/rel_liberty/establishment/topic

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