Church and State in the United States (Legal History)
CHURCH AND STATE IN THE UNITED STATES (LEGAL HISTORY)
The United States law of freedom of religion has evolved from many historical circumstances and often conflicting ideologies. The Church-State arrangements of the Colonial period were to require a new pattern when full union was finally attained. By a process of legislation and judicial decisions, continual adjustments were made to accommodate the needs and to meet the demands of a nation becoming ever more pluralistic in religion. The study of Church and State in American law indicates that there is wide latitude for the solution of conflicts and problems still to come.
1. Colonial Period (1607 to 1776)
Church-State understandings in the United States had their origins in the Colonial period between 1607 and 1776. The law of this period reflected a growing spirit of freedom and grew out of the colonists' adjustment to New World opportunities. The colonists had always to reckon with the Church of England and the religious policy of the mother country. Great diversity came out of the experience in the three major regions, the Southern, Middle, and New England Colonies, which were to some extent distinct cultural groups. Certain legal landmarks in each of the colonies of these regions will be pointed out and an account taken of the forces behind them. Restrictions on dissenters from the varying versions of establishment had great implications even for Catholics, and these will be noted.
Virginia. The Church of England was officially maintained in Virginia from the very beginning. The 1606 Virginia Company Charter urged the colony to foster Christianity "according to the rites and doctrine of the Church of England." The Royal Charter of 1624 in the era of Archbishop William laud carried forward the design of Anglicanism without regard for Dissenters. Novelties of doctrine were opposed and the assembly passed laws applying Canon Law. The colonial government regulated the building of chapels and appointment of ministers and ritual. It was in this environment that the first Lord Baltimore unsuccessfully attempted a settlement and saw the need of locating elsewhere. Catholics were soon disfranchised. Comprehensive legislation on these matters was passed in 1642.
The 17th century was marked by a successful move toward local vestry control of parishes. This involved conflict with the governor. Following the lead of a predecessor, William Berkeley insisted on examining credentials of ministers to make certain that they had the approval of the bishop of London. However, he won the power of presentation of ministers only in Jamestown; elsewhere parish vestries, in the hands of the planter gentry, controlled appointment.
Puritans were unable seriously to modify this order of things even during the Commonwealth period. When Berkeley returned as governor in 1661, he made further provisions for the enforcement of Anglican liturgy; legal illegitimacy was imputed to children of parents outside this rite of matrimony. Fines were levied on those failing to meet church obligations, and assessments were collected for support of the church. Quakers, Puritans, and Catholics were unwelcome during this era. Giles Brent, the wealthy Catholic planter, as an exception held a seat in the assembly.
The declaration of rights of 1689 compelled Virginia to give legal status to congregations that were not strictly in the Anglican tradition. Huguenots and German Lutherans organized churches between 1700 and 1730 with legal incorporation. The Hanover Presbytery legally placed itself under the Philadelphia Synod. Dissenters in time established their churches in this manner, but their practice of having itinerant preachers created legal difficulties that had to be remedied by other legislation. Francis makemie first won a certificate to preach as a Presbyterian. In time itinerant preachers came to enjoy the same legal right, and Samuel Davies among Baptists played a leading role in widening practices of toleration when his appeal to the royal government was upheld.
Methodists and Baptists, however, experienced de facto intolerance at the hands of local officials. Instances of imprisonment for alleged disturbance of peace and verbal attacks on the Church of England shortly before the Revolution created a rallying point for opposition to establishment. General taxes on nonconformists for the support of the Church of England now became a major issue. The laity from within the Church indirectly supported this trend when they opposed what was called the “Parson’s Cause.” They resented the clergy’s claim to greater income in the face of the losses from fluctuation in tobacco prices. They now became militant in the traditional cause against a resident bishop, who would claim more taxes and the very ecclesiastical power which the lay vestries had long retained. It was only with the Revolution, however, that the new form of the Protestant Episcopal Church brought what the laity wanted. Other denominations likewise had their remaining disabilities removed by this turn of events.
Carolinas. The Church of England was established in the Carolinas, even though dissenters soon constituted a majority of the inhabitants. The ecclesiastical law of England was applied by the Charter of 1663, and the lord proprietors soon made declarations in which religious freedom was promised. Charles II, however, gave them discretionary power in limiting it in the interest of the establishment and civil order.
The Fundamental Constitution of 1670, attributed to John locke, showed greater toleration while retaining establishment. All save atheists were allowed, although tax benefits went only to the Church of England. The freedom granted to non-Christians was intended to aid the conversion of the native peoples. A law of 1696 specifically excluded Catholics from full citizenship and religious freedom. This occurred in a period of Quaker in fluence; a governor of that faith took office in 1694. As in Virginia, Protestant dissenters struggled for full freedom in the 18th century in the face of a more firmly established Church of England. The assembly began to supervise them strictly, and they were for a time disfranchised by a law of 1704. Assemblymen had to conform to the Anglican communion ritual. Dissenting ministers were not recognized and were excluded from congregations petitioning them. Joseph Boone, however, appealed successfully to the Crown and the Fundamental Constitution. Particularly in North Carolina, which became a separate colony in 1691, Quakers fought against the established church and the Vestry Act of 1704. It was some time before they were relieved of disabilities implied in oath requirements. Marriages before non-Anglican clergymen were not legal in North Carolina until 1766.
Georgia. The Charter of George II in 1732 assured all inhabitants except Catholics “a free exercise of Religion …, ” and Quakers were allowed to substitute an affirmation for the usual oaths. The trustees in their “Design” encouraged European Protestant settlers and shortly offered material support to clergy who would minister to new communities. When the colony was put under direct royal control in 1752, formal establishment of the Church of England came about. Its parishes received support and stipends for their clergy.
Massachusetts. The founders of Massachusetts Bay brought with them the belief that the true church was the individual congregation. A group of such churches could, however, be viewed collectively as within the Church of England. The New Englanders, following the teaching of William Ames and in opposition to Thomas cartwright, rejected the idea that the congregation existed by authority of the Church of England.
A second principle produced what has been called a “Bible State,” or theocracy in Massachusetts. The Hebraic concept of covenant as a relationship between the soul and God found legal application. Persons who enjoyed such a relationship were the only full citizens, or saints. Their status was verified by the elders of the local congregation. Such covenanted souls and congregations collectively formed a covenanted state. The civil magistrates and judges ruled as the counterpart of the congregation elders. While clergymen were not civil officials, they were their authentic guides in fashioning laws, which all assumed would conform to the Bible. Such godly magistrates were guardians both of public morals and church discipline. Because religious and civil authority both derived immediately from the rule of divine revelation in the Bible, the commonwealth was properly called a theocracy.
Using to advantage the vague language of the Massachusetts Bay Company Charter, the founders through the general court limited the control and full benefits to settlers “such as are members of some of the Churches…. ” Four years later, in 1635, such churches had to be approved by the general court. Within three years assessments were levied for the support of these congregations. Fines were soon imposed for nonattendance, and in 1646 the Act Against Heresy listed punishments that would be meted out for denial of justification, immortality of the soul, and of other orthodox beliefs.
Adjustment of authority was made within this framework of law. The clergy as learned divines were earnestly consulted by all magistrates to see that the actions of the latter conformed to the directives of Holy Scripture. Nathaniel Ward wrote a code of laws for this purpose in 1641. Controversy over the manner of forming and approving true congregational churches led to the Cambridge Platform; and a general court act of 1651 put down the westminster confession of Faith as a criterion of orthodoxy. Thus an aristocracy of magistrates and church elders was preserved by the balance of authority that these prescriptions established.
Judicial decisions fell harshly upon dissenters from these laws. The magistrates expelled Anne Hutchinson for the heresy of antinomianism and Roger williams for his notion of separation of Church and State. Quakers were executed when they defied decrees of expulsion, and the Salem witchcraft trials at the end of the 17th century were the result of this legal system. Catholics were singled out by specific laws as being even more unwel-come than Quakers. The Christmas festival was forbidden as a manifestation of popery.
Reaction against such harshness, the pressures of a growing secularization and religious diversity, forced concessions. The Half-Way Covenant as a law relaxed requirement for church membership and full citizenship. The strict rule of baptism for children only of parents in full communion no longer held. Forms of “communion in spirit” were applied as norms. Anglicans were increasingly receiving the Lord’s Supper, and in time their churches were legally recognized. Yet Congregationalism combined with other sects in stopping the spread and in fluence of these churchmen lest an Anglican establishment be imposed on New England. The Declaration of Rights of 1689 urged Massachusetts to extend freedom to all Christians except Catholics. Financial support of Congregationalism became the bone of contention. The Five Mile Act of 1727 allowed Anglicans to apply their assessment to one of their churches or ministers provided they were within that distance. The 18th century saw gradual extension of this practice even to the benefit of Anabaptists. Incidental inequities were a continual object of attack by Baptists, Presbyterians, and others through the Revolution.
The Plymouth settlement, founded before Massachusetts and joined to it in 1691, did not strive so strenuously for theocracy. The mayflower compact made no specific provision for theocracy, although Puritans predominated in drafting it and applying it to civil life. Laws gave civil officials power to keep peace in the churches and promote attendance at worship without specifying any sect. Financial support of some clergy was enforced. In 1671 freemen came to be limited to those of orthodox belief. Quakers were unwelcome as were Catholics, and oaths created a problem for both groups.
Connecticut. New Haven, which was joined to Connecticut in 1662, was a pure theocracy. Under the leadership of John Davenport and the Fundamental Agreement of 1639, unorthodox views were suppressed. Those who were not Congregational Church members had to apply for a certificate if they would remain in the colony and then they were without full citizenship. All settlers were put under the government of magistrates who were pillars of the church. These men chose a governor who had a similar standing.
Connecticut was not so strict a theocracy. Thomas hooker, who formed its principles, disagreed with John Winthrop’s aristocratic theory of magistracy. Church membership was not a requirement for citizenship. The assembly was therefore more open. The governor, possessed of less authority than in Massachusetts, was required to have church standing. The substance of theocracy was found in the authority of the assembly over church discipline. It chartered Congregational and all other churches, and in disputes it might sit as a quasiecclesiastical court. After 1656 Connecticut was guided by Massachusetts’ Half-Way Covenant and its own Saybrooke Platform of 1708 in relaxing requirements for congregations and membership. Assessments of all for the support of the official Congregational Church prevailed throughout the period.
The religious homogeneity of Connecticut in the 17th century had minimized the difficulty of dissent, but this condition of homogeneity soon changed. However, Quakers once viewed as unwelcome now found some protection. A law of 1708 made further concessions to liberty when Anglican Churches were authorized. In the Act of 1727 to protect dissenters, one provision allowed Anglicans to apply their religious assessment to their own ministers and churches. After 1750 Presbyterians and others were given a similar benefit.
New Hampshire. When John Wheelwright was banished from Massachusetts, he successfully established the foundations of what would become in 1679 the independent colony of New Hampshire. The Agreement of 1639 put down no religious requirement for citizenship, officeholding, and voting. Massachusetts agreed to this and admitted New Hampshire delegates to its general court. At the same time New Hampshire early on passed laws of assessment for the support of the clergy without specifying to what sect they must belong.
Beginning in 1680 steps were taken to make a royal colony of New Hampshire. Past practices continued. Except for a few intervals before 1700 the mother country effectively formed a policy that protected, and at times favored, the Church of England. Freedom of Protestants was decreed and dissenter churches were not opposed.
Rhode Island. The only truly radical departure from the prevailing conviction that Church and State should be united was made by Rhode Island. Roger Williams, its founder and guiding genius, argued against Massachusetts laws within the framework of Calvinistic theology. Rhode Island’s first charter contained only customary statements on religious freedom. A fundamental code was soon drawn up that denied civil magistrates authority over spiritual matters. Persons of all religious persuasions were granted citizenship, and no levy of taxes for the support of any church was permitted. In his oversimplified analysis the church must stand before the law as any other corporation, free of any complicated characteristics that might put it beyond the nation or with a purely spiritual existence. Williams’s own adjustments of theory to practice were confined to the task of dealing with Quakers and others where freedom of conscience might disrupt public order. In 1662 Charles II approved the original charter. The 18th century saw departures from the full measure of toleration. In 1729 Roman Catholics were disfranchised. Jews were disbarred on religious grounds from public office.
New York. The 1638 Articles of Colonization made it clear that Dutch companies were responsible for promoting the Dutch Reformed Religion. This arrangement, however, never resulted in a very strict establishment, and dissenters were generally respected.
These conditions continued to a great extent when the Catholic Duke of York, later King James II, took over control with his laws of 1665. Liberty of conscience was specifically granted and the Catholic governor, Thomas Dongan, reasserted more forcefully in 1683 the provision for religious freedom for Christians. An attempt was made in 1693 to compel appointment of Anglican ministers only, but these efforts failed. Dissenting congregations and their clergy were recognized. The Presbyterian Francis Mackemie and others were allowed to preach throughout the province.
Concessions were made to Quakers regarding oathtaking in 1734, but no concessions ever clearly freed Moravians. Catholics were specifically denied benefits of toleration, and instructions from the Crown and the governors reinforced this measure.
New Jersey. Both East and West Jersey came under the force of New York law between 1702 and 1738. Before this time official “Concessions” of the lord proprietors gave toleration to Scotch Presbyterians, Quakers, and Dutch Reformed; and in 1693 to other Christians, except Catholics. No full establishment was found after 1738, when New Jersey became a royal colony.
Pennsylvania. The proprietary form of colonial charter provided the foundation upon which Pennsylvania developed, free of an established religion. As an exercise of personal power Charles II repaid an old debt of money, services, and friendship to Admiral William penn through the admiral’s son of the same name. Young William’s deep involvement with the Quakers, who were laboring under legal disabilities, made it natural to seek in the charter issued to him in 1681 a remedy for his religious troubles. Its only reference to the Church of England was an assurance to its adherents that they might freely petition and receive preachers.
The year following the issue of the charter brought a fuller public statement of the colony’s legal structure. In keeping with the “Holy Experiment” characterization he had given the colony, Penn’s Frame of Government clearly acknowledged God as the author and end of society. Liberty was assured to any believer in Him. The Sabbath and Scriptures were to be honored. When Penn’s first colonial assembly met, representatives saw fit to require that voters and officeholders profess Christianity. No reservations were made in reference to Roman Catholics.
In 1693 William and Mary annulled all the Pennsylvania laws, but the colonial assembly immediately passed them anew. Apparently their legality needed to be established since the legality of Stuart provisions may have been questioned. Certainly the broad provision for freedom in Pennsylvania would have been narrowed if the Declaration of Rights of 1689 had been applied to it. As it was, public worship, even by Roman Catholics, continued all through the Colonial period. Unlike practices in England, one need not take the oath of supremacy nor perform prescribed acts of worship in the Church of England.
The oath, however, was required in connection with voting and officeholding in Pennsylvania. William Penn failed in his own efforts to relieve Americans of this burden, particularly to the consciences of Quakers and Catholics. Under pressure, the first assembly passed in 1696 “A New Act of Settlement,” which practically had the effect of excluding many Quakers and all Catholics from voting and holding public office. It was not until 1725 that Quakers obtained relief, when the Crown finally ceased to disallow action in their favor by the assembly. Benefits of this law were extended to other societies in 1743 and in 1772 to any person who objected to the practice of oaths. Oaths and declarations against Catholic doctrines were demanded of immigrants and do not seem to have been removed during the Colonial period, although they may not have been applied consistently.
Delaware. A Swedish Lutheran Church was established in the period before the Dutch attached the colony of Delaware to New Netherlands in 1663. Initially part of Pennsylvania when English rule began, it continued after 1701 as a separate colony to have a toleration similar to that in Pennsylvania. Oaths in particular were mitigated to the advantage of immigrants and others during the next 20 years. Church property rights were recognized. Neither benefits, however, came to Catholics.
Maryland. The Maryland Charter of 1634 freed George Calvert, First Lord Baltimore, and his colonists from requirements of the Church of England. The general references to religion in the charter and his own instructions secured freedom of conscience for all—probably including non-Christians. The Maryland toleration act in the ordinance of 1639 made this freedom even more certain. The act of 1649 gave special force to the Christian’s claim to toleration. This legislation was repealed in 1654 when the Puritans came to power, but was restored again when Cecil Calvert, Second Lord Baltimore, recovered full control as proprietor in 1660.
George Calvert had two legal controversies with the Jesuits during this early period of the colony. He refused to exempt laymen on church property from civil law and its courts. A Jesuit title to land received from the native peoples was successfully challenged, and legislation against mortmain followed.
An Act for the Establishment of the Protestant Religion was passed by the assembly following the overthrow of the Stuarts by William and Mary. Catholic proprietary government was thereafter illegal. In 1700 taxes for support of the Church of England were voted. Benedict Leonard Calvert won back proprietary rights after he had conformed to the Church of England in 1714.
The governor’s powers of presentation and induction of clergy were a source of continual controversy. Attempts at obtaining a resident bishop, or a permanent commissary to supervise the clergy, failed. As late as 1769 the governor prevented the clergy of the Church of England from holding a convention to deal with their affairs.
While concessions to Quakers and other Protestants came in the 18th century, penalties continued to be imposed on Catholics. There was an Act to Prevent the Growth of Popery that ruled out public officeholding and public worship. Catholic immigrants found obstacles in coming to Maryland, and possession by a Catholic widow of children by a Protestant husband was declared unlawful.
Bibliography: h. s. smith et al., American Christianity: An Historical Interpretation with Representative Documents, 2 v. (New York 1960—63) 1:1—416. a. p. stokes, Church and State in the United States, 3 v. (New York 1950) 1:151—358. s. h. cobb, The Rise of Religious Liberty in America (New York 1902). e. h. davidson, The Establishment of the English Church in the Continental American Colonies (Durham, North Carolina 1936).
[t. o. hanley]
2. The Disestablishment Period (1776 to 1834)
By the time of the American Revolution, physical persecution of religious dissenters had ended, and a measure of toleration existed. Yet ten of the original 13 colonies—the exceptions were Rhode Island, Pennsylvania, and Delaware—continued to prefer and support one religion, over all others. The church that by law enjoyed that status was spoken of as the established church, or establishment, of that state. The erosion of the preferential position of the established church is traced from the Revolution to the mid-19th century when, for the first time in world history, Church and State were completely divorced.
No Federal Establishment. Before proceeding, it is important to note that there has never been a Federally established church. In the Articles of Confederation, there is only one reference to religion. Each state is guaranteed the assistance of its sister states if attacked “on account of religion.” The Articles only maintained the status quo.
When the Constitutional Convention met in Philadelphia in 1787, the practical needs of the situation as much as the political and philosophical theories of the day demanded that only timid reference, if any, be made to religion. By 1789, the states were on their way to religious freedom. To interfere with this current by establishing a Federal church would have jeopardized the new Union. The New England colonies generally supported a Congregational Church, while the Middle Atlantic and southern colonies possessed Episcopal establishments. Even if the founding fathers had not believed in separation of Church and State, which church was to be established? The only way Episcopal and Congregational churches could federate with Presbyterians, Baptists, and smaller groups was on a basis of Church-State separation. Article 6, proscribing a religious test of office, was the offspring of this innocuous neutralism. European political states traditionally required their officers to follow the state religion. The American colonies were no exceptions. Almost all of them enacted some religious prerequisite to holding public office. Even though the new states had not yet effected disestablishment at home, they included Article 6 in the proposed Constitution. It read: “No religious test shall ever be required its a qualification to any office or public trust under the United States.”
In the state conventions called to ratify the Constitution, a desire for even stronger guarantees of religious liberty was voiced by the delegates. Whether a state still retained its own establishment or not, its delegates announced the tenor of the times: the Federal government, if only to preclude encroachment on the privileges of the state establishment, should not establish Federal religion. The Federal government was not to be antagonistic to religion, but was rather to remain impartial in that matter and to attend to its civil business.
Responding to this public sentiment, the First Congress drafted a Bill of Rights, ratified by the states in 1791, which in part declared negatively that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Both Article 6 and the religious guarantees of the First Amendment applied only to the Federal government [Barron v. Mayor of Baltimore, 7 Peters 243 (1833).] It was easier to breach centuries of history and bar a Federal religion where none yet existed than to dislodge existing establishments in the states. Thus the states of the Union that had not already done so were to spend the next half-century attaining this Federal standard of Church-State relationship.
Reasons for Disestablishment. The states granted religious freedom of their own volition, since the Federal government was without jurisdiction over a state’s internal affairs [Permoli v. New Orleans, 3 How. 588 (1845).] The disestablishment of state churches was the result of several factors: (1) The argument voiced by establishment proponents that religion and ultimately the state would die out without the continued support of the government was rebutted dramatically by the growth of religion in the free soil of Rhode Island and Pennsylvania.(2) With the ease resulting from their wealth and legally secured position, the established churches had become stagnant and stilted, had obtained few converts, and lacked a fervent congregation that would energetically oppose disestablishment. (3) As immigration to the New World increased and the dissenting churches gained more converts, the established groups became the political minority. (4) And the Bill of Rights, even though legally inapplicable to the states, added impetus to the disestablishment process by emphasizing individual liberties. Catholic agitation during this period, while unequivocal, should not be over-emphasized. At the time of the Constitutional Convention, less than two percent of the churches in the United States were Catholic.
New England States. With the exception of Rhode Island, the New England states supported the Congregational Church and were more reluctant to disestablish than the states to the south.
Connecticut. Connecticut operated for more than 40 years after the Revolution under the royal charter of 1662, which designated the state church as the Congregational. Disestablishment was not achieved until 1818, after a long and bitter politico-religious struggle. Here, as in Massachusetts, the established Congregational ministry had retained tremendous political, social, and economic influence long after the Federal Constitution was ratified. With the Toleration Act of 1784, the first glimpse of disestablishment was visible. The act removed many disabilities, and established a “certificate” scheme whereby a dissenter was excused from contributing to the established church if he executed a paper declaring that he regularly attended a dissenting church. The dissenter might then pay his tax to his own body, but he was still required to support some one religion.
The political agitation was intense. Congregational members had always aligned themselves with the Federalist Party. The dissenters joined the liberal Jeffersonian Republican Party. As in all the New England states, the Baptists, both for reasons of religious belief and practical advantage, pressed the cause of separation. In 1816, compulsory church attendance was repealed. In 1817, Oliver Wolcott, a liberal coalition candidate, won the gubernatorial election, ending a Congregational monopoly of that post. A constitutional convention was called for the following year. After recognizing the individual”s freedom to enjoy religious profession and worship, the new constitution declared that “no person shall be compelled to join or support, nor by law be classed with or associated to any congregation, church or religious association.” The Methodists secured a charter for Wesleyan University in 1831, and the disestablishment was completed.
Massachusetts. Though not as slow as Connecticut in adopting a state constitution, Massachusetts was slower in bringing about a financial disestablishment of the Congregational Church. The state constitution of 1780 contained an important and inclusive Declaration of Rights (Moehlman, 40). But an abrupt and absolute break with the past was not conceivable, so the constitution went on to provide for the support of the Protestant ministry and for compulsory attendance at some religious instruction. The proposed constitutional amendment of 1820 to overturn these vestiges of the establishment was defeated by nearly two to one. The end of the establishment did not come until 1833, when a comprehensive amendment to the constitution was ratified by an overwhelming vote (Moehlman, 67).
New Hampshire. The colonial attitude was akin to that of Massachusetts, since New Hampshire was a part of it until 1679. The Bill of Rights of 1784 acknowledged the right of conscience, but permitted the several towns of the state "to make adequate provision at their own expense, for the support and maintenance of public Protestant teachers of piety, religion, and morality." Protection of the law was extended only to Christians (Moehlman, 50). Legal status was granted the Baptists in 1804, the Universalists the following year, and the Methodists in 1807. The Toleration Act of 1819 retained the requisite that public teachers and public officials be Protestant, but it did abolish mandatory support for the establishment, thereby mollifying the dissenters. An amendment of 1877 decreed that “no person is disqualified to hold office by reason of his religious opinion.”
Rhode Island. From the beginning, Rhode Island guaranteed religious freedom to all its citizens. The success of Roger Williams' "Lively Experiment" was a constant rebuke to those proponents of a union of Church and State who argued that one would collapse without the other. For a time a slight "blemish" appeared on Rhode Island's record of religious freedom. In some printed editions of its charter, Roman Catholics were excepted from the "liberty to choose and be chosen officers in the Colony." This restriction was foreign to the spirit of the colony, and both Thorning and Stokes argue that it was inserted without legislative authorization, possibly a result of a clerical error. It remained in the laws of Rhode Island until 1783. The constitution of 1842 guaranteed religious and civil liberties to all citizens (Moehlman, 72).
Middle Atlantic States. Unlike New England, there was never a firmly intrenched establishment in any of the Middle Atlantic states, though New York and New Jersey did favor the Church of England.
New York. In the years preceding the Revolution, the general policy of the New York government was to favor the established Church of England as much as possible without severely alienating dissenters. By the first state constitution, enacted in 1777, the Act of Establishment of 1683 was repealed (Moehlman, 48). "Religious profession and worship, without discrimination," were assured to all citizens. No religious test was prescribed for any state officer, with the exception that ministers of the gospel were denied the right to hold public office. Quakers were allowed to affirm an oath rather than swear to it, and they were permitted to substitute a money payment for military service. The first constitutional revision in 1821 did little to change the clauses regarding religion. The disability of public office was removed from the ministry in the amendment of 1846. In New York, the disestablished church was guaranteed at all times continuous possession of lands granted them during the establishment period, a reversal of the Virginia precedent.
New Jersey. Close political ties with liberal New York, plus the mild and tolerant spirit of the Quakers in the state legislature, leavened the whole course of New Jersey's attainment of religious freedom. The state's first constitution, adopted two days before the Declaration of Independence was announced, exempted all persons from mandatory attendance at religious services and the obligation of maintaining a church or ministry. Only Protestants, however, "were capable of being elected into any office of profit or trust, or being a member of either branch of the Legislature" (Moehlman, 48). This situation continued until 1844, when a new constitution was enacted granting civil liberties equally to all the citizenry (Moehlman, 72).
Pennsylvania. Under the enlightened William Penn, Pennsylvania grew without an establishment. His Charter of Liberties and Privileges, granted in 1701, guaranteed freedom of worship to all theists and the right to hold office to all Christians. This liberal bent was continued in the Pennsylvania constitution of 1776, but the religious test of office found in the charter was retained. Each member of the house of representatives was required to attest before being seated: "I do believe in one God, the creator and governor of the universe, the rewarder of the good and punisher of the wicked. And I do acknowledge the Scriptures of the Old and New Testament to be by Divine inspiration." This admitted Roman Catholics to full rights and was in this respect more liberal than contemporaneous constitutions of its sister states. The reference to the New Testament was, of course, distasteful to the Jewish community in Philadelphia, and in 1783 they petitioned that it be dropped. This was done in 1790, but the test of belief in God was retained.
Delaware. Delaware gained independence from Pennsylvania in 1701, and taking its lead from its parent state, it never had an established church. Religious freedom, therefore, was always the rule; complete civil freedom was not so immediate. In its constitution of 1776, Delaware, like Pennsylvania, required an oath of all elected officials to provide that the state should be governed by orthodox Christians (Moehlman, 52). Contrariwise to Pennsylvania, however, Delaware abolished any religious test of office in 1792, completely separating the state from religion.
The South. All the southern states established the Church of England. The contrast between the conduct of Virginia and that of South Carolina during the Revolution is notable.
Maryland. The position of Roman Catholics in Maryland at the time of the Revolution was more secure than in the other colonies because of the strong Catholic influence in the early years of the colony and the weak position of the Maryland establishment, the Anglican Church.
The declaration of rights adopted as part of its new constitution of 1776 recognized that "all persons, professing the Christian religion are equally entitled to protection of their religious liberty." The Quakers, Dunkers, and Mennonites, opposed to taking judicial oaths, were allowed "to affirm" and were "admitted as witnesses in all criminal cases not capital." This was extended to capital cases in 1798. Charles Carroll of Carrollton, the Catholic patriot, was one of those voting in favor of the article authorizing the state legislature to "lay a general and equal tax, for the support of the Christian religion." Finally, a "declaration of a belief in the Christian religion" was required by the constitution for admission to any office of trust or profit (Moehlman, 41). The Jew and the freethinker were still under disabilities. There were only a few Jews in the state, and the legislature did not act to remove the restriction until 1826. The religious test of office, which has since been struck down by the United States Supreme Court Torcaso v. Watkins, 367 U.S. 488(1961), was then unacceptable only to a small number of agnostics and atheists, since a declaration of belief in the existence of God was still necessary.
Virginia. Thomas Jefferson, James Madison, George Mason, the Baptists, and the Presbyterians united to disestablish the conservative Episcopalian Church of Virginia and to light the path to religious freedom in the United States. The Declaration of Rights, passed three weeks before the Declaration of Independence, and the Bill for Establishing Religious Freedom combined to assure members of all faiths complete religious and civil liberties by 1785. This influenced immeasureably the course of the Federal and sister states' governments.
North Carolina. The Carolina Charter of 1663 specially recognized the Church of England, but it provided for a measure of toleration so long as nonconformity did not interfere with the civil authority. North Carolina was second only to Virginia in adopting a constitution, guaranteeing complete religious freedom (Moehlman, 44). The constitution restricted public office to those acknowledging "the being of God [and] the truth of the Protestant religion [and] the divine authority of the Old and New Testament," thereby excluding Roman Catholics and Jews. Clergymen were not permitted to hold office.
In 1835, at Raleigh, the word Protestant was changed to Christian in deference to the Roman Catholics. In fact, however, the Protestant requirement had not been enforced, for Thomas Burke, who became governor in 1781, and William Gaston, who was appointed to the North Carolina supreme court in 1833, were both Catholics. The Jewish disability was enforced, for there was little pressure to remove the bar since most of the Jewish population in the United States was found in the large cities to the north. The constitution of 1868 removed this last restriction to total religious freedom (Moehlman, 108).
South Carolina. South Carolina had established the Anglican Church. By the constitution of 1778, all theists were "freely tolerated," but that document further declared that "the Christian Protestant religion shall be deemed, and is hereby constituted … the established religion of this State." Despite the existence of a preferred religion, the dissenters' onerous task of supporting an establishment was removed. Only Protestants could hold public office. Any religious society holding property was permitted to retain it. This law was very beneficial to the Anglican Church, the prior establishment, since it had been the donee of much official largesse.
The state exercised a Connecticut-like control over religious activities. The election of a pastor or clergyman was prescribed by the constitution to be by majority vote of the congregation. The elected minister was further required to subscribe to a declaration anticipating his official and unofficial conduct during his tenure.
By the constitution of 1790, dissenters, previously only "tolerated," were guaranteed the "free exercise and enjoyment of religious profession and worship, without discrimination or preference." The Roman Catholics and other non-Protestant groups were enfranchised. The document was a drastic departure from the narrowly Protestant constitution of 12 years earlier (Moehlman, 45). By 1868, only those who denied the existence of a Supreme Being were ineligible to hold public office.
Georgia. The Georgia Charter of 1732 secured by James Oglethorpe stipulated that all office holders be Protestant, and "that all … persons, except papists, shall have a free exercise of religion." The derogatory term "papist" was deleted by the constitution of 1777 and freedom of worship was extended to all citizens. As was frequently the case, the clergy were unable to hold office. There was no religious test for voting, but the Protestant prerequisite of membership in the state legislature was retained. The 1789 constitution removed all religious restrictions upon service in public office. Thus Georgia from early times was provided with religious freedom.
In conclusion, though the Federal government was forbidden to establish a preferred religion, remnants of the state establishments existed well into the 19th century. For the first time in history, State and Church were independent of each other. The pace of disestablishment is notable, but more notable is the historic result.
Bibliography: p. w. coons, The Achievement of Religious Liberty in Connecticut (New Haven 1936). j. de l. ferguson, The Relation of the State to Religion in New York and New Jersey During the Colonial Period (New Brunswick, Connecticut 1912). l. hÜhner, The Struggle for Religious Liberty in North Carolina (Baltimore 1907). j. c. meyer, Church and State in Massachusetts from 1740 to 1833 (Cleveland 1930). c. h. moehlman, The American Constitutions and Religion (Berne, Indiana 1938). j. f. thorning, Religious Liberty in Transition (Washington 1931). a. p. stokes, Church and State in the United States (New York 1950). a. w. werline, Problems of Church and State in Maryland during the 17th and 18th Century (South Lancaster, Massachusetts 1948).
[m. j. mullaney, jr.]
3. Period Of Conflict (1834 to 1900)
The 19th century was an era of conflict on the religious front in the United States. Resentment against immigrants brought forth American nativism in the form of such movements as the ku klux klan and know-nothingism. The amazing growth of the Catholic parochial system was a response to the problems of the era.
At the start of this period only a few effects of state establishment of religion still remained. The most obnoxious was the religious test for public office. In spite of the Federal and state guarantees of religious freedom, the churches in the 19th century encountered several new types of difficulty with the government. A proposed constitutional amendment (Blaine Amendment) that sought to deprive religious-affiliated schools of state financial aid had a lasting effect in many states. The Mormon Church and its practice of polygamy came under direct attack. A series of disputes reached the courts as a result of schisms that split the churches into warring factions. Religious practices in public schools were both approved and forbidden by the various state courts. Problems arose concerning the holding of church property and the incorporation of churches. Amid all this conflict there was, strangely enough, a 20-year period in which the United States and the Vatican had diplomatic relationship.
Religious Tests for Public Office. The founding fathers of the United States thought that a necessary prerequisite for securing the freedom of religion in this country was the inclusion in the constitution of a clause prohibiting any religious test as a requirement for holding public office. The proposal was made originally in 1787 at the Constitutional Convention by Charles Pinckney of South Carolina. There was considerable debate on the subject at the convention; but it was finally drafted into Article 6 of the United States Constitution, and passed easily, North Carolina being the only state that voted against it. Article 6 of the United States Constitution states that elected officials shall be bound by oath or affirmation to support the Constitution, and then continues, "… but no religious test shall ever be required as a qualification to any office or public trust under the United States."
Although this provision in the United States Constitution was almost unanimously approved by the original 13 states, they were very slow to incorporate similar provisions in their own state constitutions. Most of the states were still feeling the effects of religious establishment and consequently limited public office to those who professed the "Protestant religion," those who were "Christians," those who believed in the "Old and New Testament" and other such conditions. Five of the original states had provisions in their constitutions limiting holders of public office to those who professed a belief in the Protestant religion (Georgia, New Hampshire, New Jersey, North Carolina and South Carolina). Georgia was the first of the five to remove this requirement, in 1789, when its constitution was changed to read that no religious test for public office would be required. New Jersey and New Hampshire did not follow suit until 1844 and 1877 respectively. North Carolina changed "Protestant" to "Christian" in 1835, and in 1868, revised it to "belief in God." This requirement is still a part of the North Carolina constitution. South Carolina replaced the qualification "Protestant" by that of belief in a supreme being in 1868, and the law still exists. Maryland and Delaware originally required officeholders to be Christians. Delaware removed this restriction in 1792. Maryland changed the requirement to belief in God in 1826, and it held until 1961, when the United States Supreme Court declared it unconstitutional (Torcaso v. Watkins 367 U.S. 488). Pennsylvania early required a belief in both the Old and New Testaments, but it was changed in 1790 to "belief in God" and is still retained (1965). The slow pace at which the original states proceeded to remove religious tests can be attributed to the fact that they were free to retain or modify their laws of religious liberty as they chose.
However, the new states to gain admission to the Union had to have their constitutions approved by Congress, and Congress after the beginning of the 19th century required that states have adequate guarantees of religious freedom. Consequently only four states admitted to the Union after the original states have any kind of religious restriction for public officeholders (Arkansas, Mississippi, Tennessee, Texas). These four require officeholders to hold a belief in God or in a supreme being. As of 1965 the constitutions of these states still retain this requirement. Most of the states admitted to the Union during the 19th and the early 20th century have some specific constitutional provision forbidding any religious test for public office. Some, though not specifically referring to public office, forbid a religious test in guaranteeing civil or political rights to all. A few states have made no mention of a religious test in their constitutions.
By 1912, with the admission of the 48th state to the union, the states specifically prohibiting any religious test included Alabama, Arizona, Delaware, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New Mexico, New York, Ohio, Oregon, Rhode Island, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. States forbidding a religious test to guarantee civil and/or political rights included Michigan, Montana, Oklahoma, and South Dakota. States whose constitutions made no mention of any form of religious test were California, Colorado, Connecticut, Florida, Kentucky, Nevada, and North Dakota. Those requiring a belief in God or a supreme being included Arkansas, Maryland, Mississippi, North Carolina, Pennsylvania, South Carolina, Tennessee, and Texas. One state, Massachusetts, obliges the people in choosing their officials to pay attention to principles of piety.
The Blaine Amendment. On Dec. 14, 1875, James Gillespie Blaine, a congressman from Maine, presented a proposed amendment of the United States Constitution to the House of Representatives. The proposed amendment sought primarily to prevent the states from directly or indirectly devoting any public money or land to schools having any religious affiliation. As proposed, the amendment read:
No state shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no religious test shall ever be required as a qualification to any office or public trust under any State. No public property, and no public revenue of nor any loan of credit by or under the authority of the United States, or any State, Territory, District or municipal corporation, shall be appropriated to, or made or used for, the support of any school, educational or other institution, under the control of any religious or antireligious sect, organization, or denomination, or wherein the particular creed or tenets shall be read or taught in any school or institution supported in whole or in part by such revenue or loan of credit; and no such appropriation or loan of credit shall be made to any religious or anti-religious sect, organization or denomination, or to promote its interests or tenets. This article shall not be construed to prohibit the reading of the Bible in any school or institution, and it shall not have the effect to impair rights of property already vested. Congress shall have power, by appropriate legislation, to provide for the prevention and punishment of violation of this article.
The issue was debated in Congress, and discussion centered on the questions of states rights to determine their educational policies, and the privilege of a religious people to secure their teachings in schools attended by their children. The proposal failed to win the necessary two-thirds majority in the Senate and was never put to the states for ratification.
Since the amendment's original failure, it has been reintroduced 20 times; but only once was it reported on by the committee to which it was referred. Even this report recommended that the resolution should not be passed. But its effect has been felt in subsequent amendments or revisions of many state constitutions. Between 1877 and 1913, more than 30 state constitutions forbade financial aid to parochial schools. The provisions adopted vary greatly in detail. Some use the same language as the Blaine amendment; others say the same thing in different words. However, they all have the same purpose, of preventing the use of public school funds by private sectarian schools.
Only eight states had any constitutional provision on this matter before the Blaine amendment was introduced. These provisions were very limited in scope, usually prohibiting aid to theological and religious seminaries. The states were Wisconsin (1848), Michigan (1850), Indiana (1851), Oregon (1857), Minnesota (1857), Kansas (1858), Nebraska (1866), and Illinois (1870).
States that early responsed to the Blaine amendment and incorporated some similar provision in their own constitutions before 1880 included Pennsylvania (1873); Missouri, Alabama, and Nebraska (1875); Texas and Colorado (1876); Georgia, Minnesota, and New Hampshire (1877); California and Louisiana (1879); and Nevada (1880). Other states were to follow in the next 20 years: Florida (1885); Idaho, Montana, North Dakota, South Dakota, and Wyoming (1889); Mississippi and Kentucky (1890); New York (1894); South Carolina and Utah (1895); and Delaware (1897). The three states admitted to the Union after 1900 joined in adopting similar provisions in their constitutions: Oklahoma (1907), New Mexico (1911), and Arizona (1912). Several states that have since 1900 adopted new constitutions have retained provisions on this matter that appeared in their earlier constitutions: New Hampshire, Louisiana, Massachusetts, and Alabama.
The articles on each state in this encyclopedia contain the provisions still in effect in each state.
The Mormon Church. In 1852 the Mormon Church decreed that the practice of polygamy was in accord with its doctrine. The practice, was permitted only to people of good moral character who could afford a large family. It was never widespread even among the Mormons. But opposition to it was strong. Many non-Mormons clamored for some type of legislation to suppress and prohibit the practice.
Congress responded in 1862 with the passage of the Anti-Polygamy Act (12 Stat. 501) making polygamy in any United States territory a crime, and prescribing a penalty of up to five years imprisonment for violations of the act. The law was difficult to enforce because it was hard to get evidence of plural marriages; the Mormon Temple officials secretly retained the records of such services. It was hard to get convictions also because the juries hearing the cases were often composed primarily of Mormons. One case of violation of the act did reach the United States Supreme Court [Reynolds v. U.S., 98 U.S. 145 (1878)]. The Court upheld the conviction of Reynolds, reasoning that freedom of religion does not extend so far as to condone overt acts that may be disruptive of the social order.
In 1882 Congress passed the Edmunds Act (22 Stat.30), making it a crime to cohabit with two women at once. To secure enforcement it was further provided that in a prosecution under this act no one could serve as a juror unless he swore that he never practiced polygamy or that he disapproved of such practice. The act also excluded polygamists from voting or holding public office in any territory. Prosecution under this law was much more successful than under the previous one.
Congress followed in 1887 with the Edmunds-Tucker Act (24 Stat. 635), which further restricted the privileges of people practicing polygamy. It permitted the vote only to those who would swear an oath against polygamy, and required all marriage ceremonies to be registered. It annulled laws that indirectly supported the practice, such as those affording inheritance rights to illegitimate children, laws limiting prosecution for adultery to cases in which there is a complaint by the wife, and laws that provided for elective judgeships in order to afford judicial support to the practice. This act also dissolved the corporation of the Mormon Church and seized all its property except that used for worship. Shortly after passage of this act the Mormon church officially disavowed polygamy and advised its members to abide by the laws of the United States in regard to it.
Shortly thereafter, in 1896, Utah was admitted to the Union with a constitutional provision forbidding the practice of polygamy. Four other Western states subsequently admitted to the Union also forbade the practice in their constitutions (Oklahoma, Idaho, Arizona, and New Mexico).
Religious Practices in Public Schools. The 19th century saw the advent of the public school system in the United States under the leadership of Horace Mann. Gradually, parochial schools of most denominations were absorbed into the public school system; the major exception was the Catholic school system. When parochial schools were merged with the public schools, there was not an immediate desecularization; religious practices and instruction were common in the early public schools. Since the Protestant religion was predominant at this time, most public schools incorporated the Protestant teaching in their curriculum. Catholics objected to this practice and accordingly thought it expedient to continue their own schools with their own religious instruction.
Gradually antireligious and nonreligious elements of the population began to work for the discontinuance of religious instruction in the public schools, and they soon succeeded. Toward the end of the 19th century the public school system was conducted by the state, divorced from all church control, and given over exclusively to the dissemination of secular information.
Though public schools were no longer to be controlled by any religious factions, vestiges of sectarian influence still remained in many states. Many schools retained the practices of saying prayers, singing hymns, and reading the Bible.
The several court decisions in the 19th and early 20th centuries concerning the propriety of Bible reading in public schools had conflicting results; a minority of the decisions prohibited such practices. Wisconsin [State v. School District of Edgeton, 44 N.W. 967 (1890)], Nebraska [State v. Scheve, 91 N.W. 846 (1902)], Illinois [People v. Board of Education 92 N.E. 251 (1910)], and Louisiana [Herold v. Board of School Division (1915)] were the four states to disallow Bible reading in public schools. Illinois excluded the Bible entirely; Nebraska and Wisconsin barred it only so far as it was sectarian and not when it was used to teach moral ethics. Louisiana barred it as giving preference to Christians over Jews. Twelve other states in which the question reached the courts decided in favor of allowing the reading of the Bible; they were Colorado, Georgia, Iowa, Kansas, Kentucky, Maine, Massachusetts, Michigan, Minnesota, Ohio, Pennsylvania, and Texas.
Similar inconsistent results occurred when the courts were asked to decide whether the holding of religious services and Sunday schools in the public school buildings was proper. Some courts prohibited such use, stating that school buildings can be used only for educational purposes and thereby excluding religious services. Other courts upheld the decisions of the school officials in these matters, whether the school officials allowed or disallowed the use.
The propriety of the practice of employing Roman Catholic nuns as teachers in the public schools also came to the courts for determination. Objectors pointed out that the wearing of religious garb with crucifixes and rosaries had a sectarian influence on the education in such schools. Statutes forbidding the wearing of religious garb were upheld in both Pennsylvania [Commonwealth v. Herr (1910) 78 Atl. 68] and New York [O'Connor v. Hendrick (1906) 77 N.E. 612].
In the late 19th century, antireligious feelings concerning public schools brought pressure to bear on legislation. As a result, from 1876 to 1912 nine of the ten states admitted to the Union were required as a condition of admission to agree that provision be made for the establishment of public schools free from sectarian control.
Tenure of Church Property. Early in the 19th century most of the property of the Catholic Church was held or administered by lay trustees. This was the result of an interplay of several factors including Old World customs, Protestant influence, and practical necessity.
Since priests were scarce in the early colonies, small communities desiring to establish a church had to rely on traveling missionaries. The only practical method of caring for church property in the absence of priests was to entrust its care to the lay members of the church. Also, many of the early Catholics in the United States had come from continental Europe, where a similar lay trustee system worked well in a civil-law framework. Problems were to arise, however, under the new system of law in the United States. Finally, since the Protestant sects were in a majority in the United States and since they were organized on a basis of lay control, the Catholics were inclined to trust in lay organization.
The lay trusteeship form of control of church property in the United States was the cause of great dissension and conflict within the Church for 50 years. Trustees attempted to secure a voice in spiritual affairs of the Church. Cases occurred in which they refused to accept the services of lawfully appointed priests and attempted to name priests of their choice. Often these differences resulted in civil court cases and occasionally went to Rome for settlement. (see trusteeism.)
In 1829 the First Provincial Council of Baltimore attempted to put an end to such internal disorders and dissension by decreeing that in the future no church could be built unless it were assigned to the bishop of the diocese in which it was to be built. The decree cited the ills of the trustee system and obviously meant to abolish this system in the future. It was immediately carried out.
Bishop as Absolute Owner. Under this system the bishop holds absolute title to the property and administers it in his individual name. This was a useful system for some time in that it proved better than the lay trustee system. However, certain difficulties arose in regard to the transfer of property at the death of the bishop, as well as in regard to improper use or disposition of the property by the bishop during his life. Attempts were made by the provincial councils of 1837, 1840, and 1843 to guarantee continuance of property in the church's hands by requiring the bishops holding title to make valid wills in favor of fellow bishops. Many courts aided the Church in this matter by declaring that the bishop mentioned in a conveyance held the property only as trustee for the members of the Church, even though no trust is expressed in the instrument. By virtue of this interpretation the property would not descend to the heirs of a bishop not having a will, nor could he dispose of it by will since the beneficiary of the trust would be the equitable owner. By the same token, under this interpretation, the property cannot be reached for satisfaction of a bishop's personal debts as it could were he the absolute title holder. An important case in which this result was reached was Mannix v. Purcell [46 Ohio St. 102 (1888)].
As a result of the troubles involved in this system, the Third Plenary Council (1884) decreed that the method of making the bishop the absolute owner of church property was to be used only as a last resort. On July 29, 1911, the Congregation of the Council forbade the method entirely.
Bishop as Trustee. Under this system of property ownership the legal title is vested in the trustee (bishop) and the equitable title is vested in the cestui que trust (members of the congregation). The bishop holds title for the benefit of the congregation. As legal owner of the property the bishop is free to administer it according to the canons of the Church. He can delegate control of the property to administrators while retaining the right of supervision over the administration. Other advantages of the system include the protection of the property of the Church. The property of the Church cannot be reached by creditors of the bishop, and neither is there a problem of testate or intestate succession since the members of the Church are the equitable owners.
Most courts have minimized the importance of the bishop as trustee and classify him as a passive, silent trustee with little power, thereby giving the members of the congregation considerable voice in deciding what use or disposition is to be made of the property. (See Arts v. Guthrie 37 N.W. 395.) This is the only objection to this form of church property ownership, and in recent times such interference by a congregation is rare.
Bishop as a Corporation Sole. Some states in the United States provide for a system of church property ownership called the corporation sole. By this system the bishop and his successors are incorporated by law and are afforded perpetuity. The corporation consists of one person, the bishop. At his death the corporation does not cease but is merely in abeyance until a successor is appointed, the successor then becoming the new corporation sole. The corporation sole holds absolute title to its property. The bishop, though he is the corporation, does not hold title. This means that the property does not descend to the bishop's heirs, nor can it be reached by the bishop's creditors. The property is transferred to the succeeding bishop.
This type of ownership existed in the colonial days wherever established religions existed, e.g., in Maine, Massachusetts, and Virginia. With the disappearance of the establishments, the corporation sole disappeared until the late 19th century, when a few states provided for it by statute. Other states have created quasi corporation soles through court decisions without legislation authority.
Corporation Aggregate. Two types of corporation aggregate appeared: the trustee corporation and the congregational corporation. The trustee corporation is an outgrowth of the lay trustee system. To remedy the faults inherent in the lay trustee system, churches sought special charters incorporating the trustees. Later most states provided for such incorporation in their general statutes. In this form of property ownership the legal title is vested in the incorporated trustees, and the equitable title is in the unincorporated society. Death of a trustee has no effect on the life of the corporation, and title to property after such a death is never in abeyance.
The congregational corporation is composed of all the members of the parish. Together they form a single legal entity. The title of property is vested in the body corporate. Officers are elected (often called trustees), but they do not hold title to the property. They merely are entrusted with the management of the business affairs of the corporation and as such are agents of the corporation. Their discretion is similar to that vested in the board of directors of an ordinary business corporation.
These types of aggregate corporations began to appear with regularity in the second half of the 19th century as various states passed laws permitting their establishment. Prior to this time religious societies were not allowed to be incorporated except by special charter. This system was criticized because favoritism to certain churches was becoming manifest.
Schisms and the Courts. A schism has been defined as a division or separation in a church or denomination of Christians occasioned by diversity of opinion [Nelsonv. Benson 69 Ill. 29 (1873)]. Such schisms have occurred with considerable frequency in the history of the churches of the United States, with comparatively few of them involving the Roman Catholic Church. Usually when a schism occurs a dispute arises concerning the property of the church. Both factions seek to have title to and use of the property. The resolution of such disputes has often been placed in the hands of the civil courts of the United States. The courts have struggled with the difficult problems involved, the primary difficulty arising from the fact that solution depends on the type of church involved. The large number and variety of denominations with varying forms of government make it impossible to find a solution that is applicable to all such disputes.
A study of the case law in this area shows that courts of the several states have given uniform treatment to these problems according to the type of church involved. In the only United States Supreme Court decision on this matter, the Court summarizes the various types of cases that have occurred and classifies them according to three categories [Watson v. Jones 80 U.S. 679 (1871)].
Specific Trust. A type of controversy arises when a schism occurs in a church that holds property deeded to it with an express stipulation that it be used to spread some specific form of doctrine or belief. In such a case it is the duty of the court to see that the property is not diverted to any other than the specified use. The court has to decide which faction of the church still adheres to the tenets or beliefs specified in the deed. This solution will often depend on the type of church involved. Is the church totally independent of any higher form of government or is it part of a national church by which it is governed? If the church is totally independent, the court must decide for itself which faction is adhering to the specified beliefs. There is no higher church government to rely on. If the church is a part of a larger organization, the court enforces the decision of the highest tribunal of the church. Accepting this decision, the civil court has merely to decree that one faction is entitled to the use of the property according to the terms of the deed. This result will follow even if the recognized faction is a minority of the original local congregation [Wilson v. Pres. Church of John's Island 2 Rich. Eq 192 (1846) S.C.].
Independent Congregation. Another type of controversy arises when a schism occurs in a religious congregation that owes no fealty to a higher authority or any other ecclesiastical association. The property that is the subject of the controversy has not been specifically entrusted. Such an organization is entirely independent and governs itself either by the will of a majority of its members or by such other local organism as the majority may have instituted for the purpose of ecclesiastical government. The rules to be followed in these cases are the ordinary principles governing voluntary associations. Whatever form of government is set up by the congregation must be followed. If the majority is to rule, the courts will abide by this, even if the majority has made a complete reversal from the doctrines to which it originally adhered. If certain officers are vested with control of the church, then whatever faction is headed by these officers will be entitled to the property. No inquiry may be made into the doctrine or beliefs of the various factions of the church. In Shannon v. Frost [3 B. Monro 253 (1842)], a Kentucky court showed its reluctance to interfere with the decision of the majority of an independent Baptist Church by stating: "The judicial eye cannot penetrate the will of the church for the forbidden purpose of vindicating the alleged wrongs of excised members." The court refused to allow the minority to use the house of worship, basing the decision on the decision of the majority. A Vermont court, in Smith v. Nelson [18 Vt. 511 (1846)], stated that in a review of church proceedings they cannot be treated differently from any other voluntary association.
In a 1903 Texas case involving a church of this type, the court correctly stated that the question of a higher church government cannot be a test, since the society is independent of all such higher ecclesiastical control, and can, by majority vote, conduct its government as it pleases (Gibson v. Morris 73 S.W. 85).
Associated Church. Another type of case, and the type under which most of the court cases seem to fit, is that of property normally acquired and intended for general use of a religious congregation that is itself part of a large and general organization of some religious denomination, with which it is more or less intimately connected by religious views and ecclesiastical government.
Most early cases were in agreement as to how disputes over property should be handled in such a case. Often a majority of a local congregation would attempt to break away from the general association and attempt to retain rights to its property. The courts recognized that although the dissenting group might be a majority of the local congregation, consideration must be given to the church government of the association of which the local congregation is a part.
A church originally formed as a branch of an associated church, subordinated to the government of that church, cannot break away from that form of government and discipline without losing the character or identity that confers rights to property [Miller v. Gable (1845) 2 Denio (New York) 492]. The portion of a church that separates itself from the old organization to form a new one cannot validly claim property belonging to the old organization if the old organization retains its original framework, tenets, and beliefs [Gibson v. Armstrong (1847) 46 Ken.481]. Any majority of a local congregation that organizes resistance to the legitimate authority of its ecclesiastical superiors is not a true congregation and is not entitled to use of the church property [Winebrenner v. Colder (1862) 43 Pa. 244].
In a case in which a majority of a congregation withdrew from a presbytery of the Protestant church and denounced its teachings, the court held that the title to church property should remain with that portion of the congregation adhering to the tenets and discipline of the larger organization to whose use the property was originally dedicated. This is true even though the remaining faithful are a minority [Ferraria v. Vascanelles 23 Ill. Repts. 403 (1860)].
These cases indicate that a minority of a local Methodist Episcopal congregation that adheres to its conference or of a local Presbyterian Church that adheres to its presbytery is entitled to the property in such a dispute. It has likewise been decided that a Roman Catholic congregation that has placed itself under authority of its archbishop cannot divorce itself from such authority and still keep title to property acquired by it [Dochkus v. Lithuanian Benefit Society of St. Anthony (1903) 206 Pa. 25].
The Supreme Court case of Watson v. Jones (81 U.S.679) involved a division in a local congregation in Kentucky, part of the Presbyterian Church. In deciding in favor of the group still recognized by the Protestant presbytery, the Court stated:
In this class of cases we think the rule of action which should govern the civil courts, founded in a broad and sound view of the relations of church and state under our system of laws, and supported by a prepondering weight of judicial authority is, that, whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them.
The court based its decision on two principles. It feared that freedom of religion would be subverted if an aggrieved party could appeal to the secular courts after the church judicatory had decided against him. Second, the court reasoned that ecclesiastical courts and scholars were better equipped with the knowledge proper for deciding questions of this nature.
Generally speaking, United States civil courts have refused to hear cases concerning purely ecclesiastical matters; rather, they accept the holding of the ecclesiastical judicatories. Also, if a civil court should choose to hear such a case, it will only do so after the aggrieved person has exhausted all possible appeals in the particular church judicatory structure [German Reformed Church v. Seibert 3 Barr 282 Pa. (1846)].
Diplomatic Representation at the Vatican. Prior to 1846 there were a few isolated instances in which the idea was proposed that the United States send a diplomatic representative to the Vatican. However, in 1846 with the election of Pius IX to succeed Gregory XVI as pope, the idea gained new impetus since this election was greatly favored in the United States; Pius IX was considered a liberal who would strive for reforms and greater freedoms.
In June 1847 the American consul at Rome in a dispatch to the secretary of state proposed that formal diplomatic relations be established between the United States and the government of the Vatican. This proposal was made after high officials of the Vatican government and the Pope himself expressed the desire that such diplomatic relations be started.
In December 1847, President James K. Polk in his message to Congress proposed the opening of such diplomatic relations, giving as reasons the political events occurring in the papal states and protection of United States commercial interests there. In Congress the proposal met with some opposition, but easily passed (137 to 15 in the House and 36 to 7 in the Senate). The opposition argued that under the United States Constitution the government could play no part in ecclesiastical matters and that the United States had no actual commercial interests to protect in the Vatican. Some feared that the President was making the proposal merely as a political move, to secure the vote of the Roman Catholic population.
With the passage of this proposal, Jacob T. Martin, a convert to Roman Catholicism, was named the first chargé d'affaires to the Vatican in 1848. Martin's instructions from the secretary of state read:
There is one consideration which you ought always to keep in view in your intercourse with the Papal authorities. Most, if not all Governments which have Diplomatic Representatives at Rome are connected with the Pope as the head of the Catholic Church. In this respect the Government of the United States occupies an entirely different position. It possesses no power whatever over the question of religion. All denominations of Christians stand on the same footing in this country,— and every man enjoys the inestimable right of worshiping his God according to the dictates of his own conscience—Your efforts, therefore, will be devoted exclusively to the cultivation of the most friendly civil relations with the Papal Government, and to the extension of the commerce between the two countries. You will carefully avoid even the appearance of interfering in ecclesiastical questions, whether these relate to the United States or any other portion of the world. It might be proper, should you deem it advisable, to make these views known, on some suitable occasion, to the Papal Government; so that there may be no mistake or misunderstanding on this subject.
The diplomatic relationship thus created lasted for 20 years, until 1867. During these years six different chargés d'affaires represented the United States in the Papal States. There was no interruption of the friendly feelings that existed between the two governments. Most of the matters arising were unrelated episodes that called for no sustained policy on the part of either country. Some of the more important incidents that arose included the alleged recognition of the Southern Confederacy by the Vatican; the question of the status of Monsignor Cajeton Bedini, who came to the United States as apostolic delegate; the protection of Vatican property by the United States legation during Garibaldi's entrance into Rome; and the refusal of the Washington Monument Association in 1852 of a block of marble for the monument sent by the Pope.
The matter that caused the most concern and eventually the cessation of United States diplomatic representation at the Vatican revolved around the institution of Protestant services conducted for American citizens within the Vatican. Such worship apparently seemed to the papacy inconsistent with the idea of Rome as the center of the one, true, universal, Church. To enable the American chapel, set up outside the legation, to continue their Protestant services, the American minister in 1866 placed the arms of the American legation over the building used as a chapel. The American minister insisted that this arrangement was satisfactory to the papal authorities. Nevertheless, as a result of this difficulty, which had been greatly exaggerated, the Congress refused to appropriate money for continuance of the United States representative at the Vatican. Thus the mission ceased to exist without ever having been formally discontinued. No formal message of explanation was ever sent to the Vatican.
Bibliography: l. c. feiertag, American Public Opinion on the Diplomatic Relations between the U.S. and the Papal States, 1847–1867 (Washington 1933). l. f. stock, United States Ministers to the Papal States, v.1 (Washington 1933). p. j. dignan, A History of the Legal Incorporation of Catholic Church Property in the U.S., 1784–1932 (Washington 1933). c. j. bartlett, The Tenure of Parochial Property in the U.S. (Catholic University of America Canon Law Studies 31; 1926). c. f. zollmann, American Church Law (St. Paul 1933). a. p. stokes, Church and State in the U.S., 3 v. (New York 1950). j. j. mcgrath, "Canon Law and American Church Law: A Comparative Study," Jurist 18 (1958) 260–78. r. a. billington, The Protestant Crusade, 1800–1860 (New York 1938).
[j. c. polking]
4. Search for Solution (1900 to 2001)
The First Amendment to the United States Constitution provides in part that "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." These 16 words were rarely commented upon from 1791 through the end of World WarII. Since the late 1940s, and even more so since 1970, the Supreme Court of the United States has expended an extraordinary amount of time attempting to ascertain the meaning of these words. The more the Court has attempted to explicate its meaning, the more elusive the guarantee of religious liberty.
As interpreted by the Supreme Court of the United States before the Civil War, the guarantee of religious liberty of the First Amendment applied to action by the Federal government, but not to action by state governments [Barron v. Baltimore, 7 Peters 243 (1833); see freedom of religion, in u.s. constitution].
14th Amendment. The 14th Amendment was one of three Constitutional amendments adopted in the wake of the Civil War. The 14th Amendment states, in part, that "[n]o state shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Although the 14th Amendment was ratified in 1868, its relation to the protection of religious liberty was rarely explored during the remainder of the 19th century. In 1875, President Ulysses S. Grant delivered a speech to the Army of the Tennessee in which he objected to any governmental support of sectarian schools and urged his listeners to "[k]eep the church and state forever separate." Later that year, Grant urged the passage of a constitutional amendment requiring states to establish free public schools and forbidding states to use any school funds for the direct or indirect benefit of any religiously-affiliated school. Grant's proposal was modified shortly thereafter, and was called the Blaine Amendment, after James G. Blaine, a Republican hoping to win the 1876 Presidential nomination. Although the Blaine Amendment was overwhelmingly adopted by the House of Representatives in 1876, a similar proposal failed to pass the Senate by the required two-thirds vote. From 1875 to 1907, the proposed amendment was introduced before Congress over 20 times, but never received as more support than it did in 1876. However, Congress required all states entering the Union after 1876 to include a provision in the state's constitution mandating the creation of a nonsectarian public school system.
At the beginning of the 20th century, the 1st Amendment guarantee of religious liberty was rarely invoked against actions of the Federal government, and the guarantees of the 14th Amendment, which protected individuals from some actions of the state governments, had not been used in a religious liberty case. In 1917, when the United States entered World War I, Congress enacted a selective service law that included some exemptions for conscientious objectors. The exemption was attacked as an unconstitutional establishment of religion, but was upheld by the Supreme Court [Arver v. United States, 245U.S. 366 (1918)]. A decade later, the Supreme Court interpreted the naturalization law to require denying naturalization to one who refused to swear an oath pledging his support of the United States government in future wars [United States v. Macintosh, 283 U.S. 605 (1931)]. That the applicant refused to so swear for religious reasons did not persuade a majority of the Court. The Court later determined that Congress did not require the swearing of such an oath, and abandoned its holding in Macintosh [Girouard v. United States, 328 U.S. 61 (1946)].
In 1925, the Supreme Court decided two cases involving claims of religious liberty. In Pierce v. Society of Sisters, the Supreme Court held a violation of the due process clause of the 14th Amendment an Oregon law that made it unlawful for parents to send their children to private or parochial school [268 U.S. 510 (1925)]. Although the implications of the Pierce decision have been interpreted in a variety of ways, all commentators have agreed that the decision gives to parents the right to send their children to religious schools. The Court also upheld New York's "kosher" law against a challenge that the law violated the 14th Amendment. The complainants argued that the words "kosher" and "orthodox Hebrew religious requirements" were too vague and indefinite [Hygrade Provision Company v. Sherman, 266 U.S.497]. Five years later, the Supreme Court held constitutional a Louisiana law requiring school boards to purchase all books for schoolchildren, even those attending religiously-affiliated schools [Cochran v. Louisiana State Board of Education, 281 U.S. 370 (1930)].
In 1940, the Supreme Court concluded that the free exercise guarantee of the 1st Amendment applied to state action through the due process guarantee of the 14th Amendment [Cantwell v. Connecticut, 310 U.S. 296(1940)]. Seven years later, the Court incorporated into the due process clause of the 14th Amendment the 1st Amendment clause barring laws respecting an establishment of religion [Everson v. Board of Education, 330U.S. 1 (1947)].
Defining Religion. The Supreme Court has decided over 70 cases on the proper relation between religion and government since the mid-20th century. It has never offered a constitutional definition of religion. During the 19th century, the Court offered a definition, one premised on a belief in a deity and on the distinction between a religion and a cult [Davis v. Beason, 133 U.S. 333 (1890)]. As the United States became more religiously diverse in the 20th century, this relatively narrow definition was rejected. When Congress adopted the Selective Service and Training Act (1940), courts were required to interpret the provision granting conscientious objector status to those opposed to war in any form by reason of religious training and belief. Divergent interpretations of that language led Congress to amend the Act in 1948 by stating: "Religious training and belief in this connection means an individual's belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code." During the Vietnam War, the Court twice interpreted that provision. It first held that the provision should be broadly interpreted to include those whose belief system was sincere and was parallel to the belief system of those who clearly fit the exemption [United States v. Seeger, 380U.S. 163 (1965)]. Five years later, the Court held that the statutory language fit one who denied his beliefs were religious, for religion was to be given an extremely broad definition [Welsh v. United States, 398 U.S. 333 (1970)]. Three members of the Court dissented from the holding, claiming that the statutory provision was interpreted well beyond any sound interpretation of religion. In constitutional interpretation, the Court has alluded to the issue of the definition of religion only twice: In the Amish schooling case, discussed below, the Court noted the distinction between religious reasons and "philosophical and personal" reasons, and that only the former was protected by the 1st Amendment. In an unemployment compensation case, the Court merely noted that the free exercise clause granted special protection to beliefs rooted in religion.
Freedom of Religious Exercise. In the 1930s and 1940s, the Supreme Court weighed the individual's claim to religious liberty against the interest of the state in a variety of contexts, many of which involved members of the Jehovah's Witnesses.
Proselytizing. In the 1930s and 1940s members of the Jehovah's Witnesses pressed a number of claims alleging violations of their constitutional rights. In a number of cases, the Supreme Court used various provisions of the 1st Amendment to strike down state statutes which limited the proselytizing efforts of the Jehovah's Witnesses. In Cantwell v. Connecticut, the Court held unconstitutional, as a violation of the free exercise clause, a criminal conviction for soliciting without a permit money for a religious cause. The majority opinion, by Justice Owen Roberts, followed an injunction first stated in Reynolds v. United States, 98 U.S. 145 (1879), the Mormon polygamy case: "[Free exercise] embraces two concepts—freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be." The Court then cautioned that the government cannot unduly infringe the right to free exercise even when attaining a permissible end. In Murdock v. Pennsylvania, [319 U.S. 105 (1943)] and Follett v. McCormick, [321U.S. 573 (1944)] the Supreme Court held violative of the free exercise clause of the 1st Amendment the imposition of a license and bookseller's taxes on Jehovah's Witnesses who offered religious books and pamphlets for sale. In 1989, a badly divided Supreme Court held that a Texas law exempting from its sales tax periodicals published or distributed by a religious faith that consisted solely of religious content violated the Establishment Clause [Texas Monthly v. Bullock, 489 U.S. 1 (1989)]. The plurality opinion of the Court limited the Murdock and Follett cases to their facts, which means those cases cannot be understood to prohibit the government from taxing the sale of religious publications. The Court also held unconstitutional a local ordinance prohibiting the door-to-door distribution of handbills [Martin v. City of Struthers, 319U.S. 141 (1943)]. The Court did hold constitutional the conviction of Sarah Prince for violating the child labor laws of Massachusetts, which Prince claimed violated her free exercise rights. Prince permitted her niece, for whom she was the custodian, to join her in selling Watchtower, the magazine of the Jehovah's Witnesses. Prince's free exercise right to proselytize and sell Watchtower did not include the right to bring her niece with her while she proselytized [Prince v. Massachusetts, 321 U.S. 158(1944)].
Flag Salute. A few weeks after the Cantwell decision, the Court decided the first flag-salute case [Minersville School District v. Gobitis, 310 U.S. 586 (1940)]. Justice Felix Frankfurter, speaking for eight of the nine members of the Court, upheld the constitutionality of a Pennsylvania law that required all public school pupils to salute the flag. As Jehovah's Witnesses, the Gobitis children refused to salute the flag on religious grounds, as instructed by their parents. The challenge to the law on free exercise grounds was rejected by the Court, which concluded that the state's interest in the promotion of national unity was sufficient to justify the law. The lone dissenter was Chief Justice Harlan Fiske Stone, who concluded that the state's justification for the law was insufficient when balanced against the individual interest in the free exercise of religion. The Gobitis opinion was released on June 3, 1940, at a time when World War II was raging in Europe, but before the United States had entered the War. Shortly after the decision in Gobitis was released for publication, and apparently in part because of the decision, anti-Jehovah's Witness hysteria gripped the country. Elite reaction to the Gobitis opinion was largely negative.
Three years later, the Court reversed itself [West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943)]. The Court's opinion was written by Justice Robert H. Jackson, who had been appointed to the Court in 1941, after the Court issued its decision in Gobitis. Five other members of the Court joined Jackson's opinion, including several Justices who had joined the majority opinion in Gobitis. Jackson's opinion is a ringing, eloquent endorsement of the centrality of individual liberty in American constitutional law: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in matters of politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." For the majority, freedom of speech could be restricted only if there was a grave and immediate danger to paramount community interests. The refusal by schoolchildren to salute the American flag did not create such a danger to the state or community.
Church Property Disputes. In the early 1950s, the New York legislature attempted to transfer control of Saint Nicholas Cathedral in New York City from members of the Russian Orthodox church who deferred to the authority of the Patriarch in Moscow to those who saw the Patriarch as a puppet of the Soviet government. The Supreme Court, in an opinion by Justice Stanley Reed, held that this legislative effort violated the church's right to self-governance [Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952)]. From the late 1960s until the end of the decade of the 1970s, the Supreme Court decided several cases involving church property disputes. Doctrinal changes by several Protestant churches in the late 1960s led to religious disputes between local and national church bodies, and within local churches themselves. Those ecclesiological disputes resulted in litigation concerning the rightful owner of the local church. After several attempts to craft a constitutional rule concerning the resolution of church property disputes, the Supreme Court in 1979 declared constitutionally permissible the resolution of disputes based on "neutral principles of law" [Jones v. Wolf, 443 U.S. 595 (1979)]. The problem with the "neutral principles" approach, as noted by Justice Lewis Powell, dissenting in Jones, is that this rule of law fails to account for the fact that religious organizations are organized as much by religious as legal precepts. Because the neutral principles rule bars courts from acknowledging the existence of those religious precepts, courts will award title to church property contrary to the precepts that undergird the religious organization, particularly hierarchical religious organizations.
Sunday Legislation. In the early 1960s, those who worshiped the Sabbath on Saturday claimed that Sunday Closing Laws violated their religious liberty. A Sabbatarian who closed his business on Saturday for religious reasons and on Sunday because state law demanded he do so suffered adverse economic consequences compared with someone whose business remained open on Saturdays. In 1961, the Court upheld the constitutionality of Sunday closing laws against challenges on both free exercise and establishment clause grounds [Braunfeld v. Brown, 366 U.S. 599 (1961)]. The opinion of Chief Justice Earl Warren conceded that the Sunday closing law indirectly operated to make the practice of religion by Sabbatarians more expensive than those whose day of rest was Sunday, but concluded that the Sunday closing laws were designed primarily to achieve legitimate secular goals. An exemption to Sabbatarians might adversely affect those secular goals by granting an economic advantage to Sabbatarians over their competitors, complicate enforcement of the Sunday closing law, inject religion into decisions concerning employment, and undermine a common day of rest. The dissenters concluded that the free exercise of religion could be infringed only to prevent a grave and imminent danger of substantive evil, and the justification of a common day of rest was a mere convenience that could not outweigh the religious liberty interest of Sabbatarians. The inequities permitted by the Court in Braunfeld eased as the states began repealing their Sunday closing laws. At the turn of the century, the number of Sunday closing laws were few, and rarely enforced.
The abolition of Sunday closing laws led to a different problem. Connecticut abolished its Sunday closing law in 1977. In response, Caldor, Inc., opened its stores for business on Sunday. Connecticut adopted, after abolishing its Sunday closing law, a provision barring a private employer from requiring any employee to work on the employee's Sabbath as a condition of employment. Thornton was a manager with Caldor, and a Presbyterian who refused to work on Sunday, his Sabbath. He was demoted to a clerical position by Caldor, resigned, and claimed he was fired in violation of Connecticut law. The Supreme Court held that the Connecticut law violated the establishment clause, because it had the primary effect of impermissibly advancing a particular religious practice [Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985)].
Unemployment Compensation. Two years later, the Court held that South Carolina could not exclude from its unemployment compensation program a claimant, who for religious reasons, refused to take a job that required her to work on Saturdays, her Sabbath [ Sherbertv. Verner, 374 U.S. 398 (1963)]. The Court characterized the law as requiring the claimant to "choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand." This was impermissible, because the law effectively penalized the exercise of her religious beliefs. The Court held that the state could infringe the religious liberty of the claimant, Adell Sherbert, only if it had a compelling interest. The state's interest in administrative convenience and preventing fraudulent claims did not rise to the level of a compelling interest. The Court's opinion, by Justice William Brennan, also concluded that this case was distinguishable from Braunfeld. A concurring opinion by Justice Potter Stewart argued that the Court had painted itself into a corner, for its interpretation of the free exercise clause in Sherbert was directly in conflict with its interpretation of the establishment clause. Justice Stewart claimed that the Court's interpretation of the establishment clause required South Carolina to deny Adell Sherbert unemployment benefits, and the Court's interpretation of the free exercise required South Carolina to grant Adell Sherbert unemployment benefits. Justice Stewart concluded that the Court's mechanistic interpretation of the establishment clause was unsound as a matter of history and wrong as a matter of constitutional interpretation.
In three subsequent unemployment compensation cases decided in the 1980s, the Supreme Court extended the holding of Sherbert v. Verner. The Court first held that the state could not deny unemployment compensation benefits to a Jehovah's Witness who left his job at a munitions factory based on his religious objections to war. That the claimant had not been fired, but had left his job voluntarily made no constitutional difference to the Court [Thomas v. Review Board, 450 U.S. 707 (1981)]. It then held impermissible the decision to refuse unemployment compensation to a claimant who was fired because, after working for his employer for two years, became a Seventh-day Adventist and then refused to work on Friday night or on Saturday, his Sabbath [Hobbie v. Unemployment Appeals Com m'n of Florida, 480U.S. 136 (1987)]. Finally, the Court held that unemployment benefits were improperly denied to a claimant who refused to work on Sundays because he was a Christian. The Court concluded that it did not matter that the claimant was not a member of any particular Christian church or organization. The issue was whether the claimant's refusal to work was based on a sincerely held religious belief [Frazee v. Illinois Department of Employment Sec., 489 U.S. 829 (1989)]. The extent to which the unemployment compensation cases stated a general rule of constitutional law was placed in great doubt after the Court's decision in Employment Division v. Smith, 494 U.S. 872(1990), discussed below.
The Amish and Compulsory Schooling. The State of Wisconsin made it a criminal offense for parents to violate the State's compulsory school-attendance law mandating that children attend school until age 16. Amish parents, pursuant to their religious beliefs, removed their children from school after they completed the eighth grade. The Supreme Court, with only Justice William O. Douglas dissenting in part, held that the Wisconsin law violated the free exercise rights of Amish parents [Wisconsin v. Yoder, 406 U.S. 205 (1972)]. The Court, following the doctrine stated in Sherbert v. Verner, held that the right to free exercise could be infringed only upon a showing by the state that the justification for its action was compelling. The Court noted that the Amish were "productive and very law-abiding members of society," and that the Amish alternative to formal schooling, vocational training, had enabled them to survive as a highly self-sufficient community in the United States for over 200 years. The state's interest in educating Amish school-children was not compelling, but merely "highly speculative." That the state's compulsory school-attendance law was neutral on its face, for it was not directed at the Amish or any other religious group, did not make the law constitutional, because the law clearly created an undue burden on the religious practices of the Amish. Justice Douglas dissented on the ground that the Court failed to account for the interests of the children themselves, who might disagree with their parents and opt to attend high school.
Native Americans and Free Exercise. Unlike the Jehovah's Witnesses in the 1940s, Native American religious practices have not fared well before the Supreme Court. In 1986, the Court held that the assignment of a Social Security number to a Native American child by the Social Security Administration did not violate the Free Exercise rights of the child or her parents [Bowen v. Roy, 476 U.S. 693 (1986)]. Two years later, the Supreme Court held that the Free Exercise Clause did not bar the government from permitting the harvesting of timber or the construction of a road on federal land, even though part of that land had traditionally been used by three Native American tribes for religious worship. The majority concluded that, because the federal government's decision did not burden the religious exercise by the complaining tribes, it did not have to address whether the government's interest in harvesting the timber and building the road constituted a compelling governmental interest [Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988)]. Shortly thereafter, the Supreme Court drastically altered its free exercise jurisprudence in another case concerning Native American religious exercise, Employment Div. v. Smith, 494 U.S. 872(1990).
Retrenchment. The continuing validity of the standards set forth in Sherbert and Yoder was called into doubt by the Supreme Court's decision in Employment Division v. Smith. Before Smith, the standard for determining a violation of the free exercise clause was to determine 1) whether the governmental action burdened the exercise of religion, and if so, 2) whether the government's reason for burdening the exercise of religion was justified by a compelling governmental interest. In Smith, the Court rejected that test, concluding that if the law was a neutral and generally applicable law, it did not offend the free exercise clause of the 1st Amendment even if application of that law might burden an individual's exercise of religion. In Smith, the issue was the constitutionality of Oregon's criminal law prohibiting the possession or use of peyote, when applied to a Native American who used peyote when engaged in religious worship. Because the criminal law was a valid and neutral law generally applicable to anyone who possessed or used peyote, the incidental effect of the law's application to someone using peyote for religious reasons did not mandate a constitutional exemption from the law. The majority, in an opinion by Justice Antonin Scalia, distinguished Sherbert and Yoder. Sherbert was limited to a peculiar constitutional rule concerning unemployment compensation, and Yoder was reinterpreted to mean that a neutral and valid generally applicable law was unconstitutional only if it violated both the free exercise clause and some other constitutional right. The Court called Yoder -type cases "hybrid" cases, and concluded that the issue in Smith was not such a case.
The academic reaction to Smith was widespread and largely negative. Three years after the decision was issued, Congress adopted the Religious Freedom Restoration Act (1993) (RFRA), which attempted by statute to restore the test enunciated in Sherbert and Yoder. In 1997, the Supreme Court held RFRA unconstitutional, as a violation of § 5 of the 14th Amendment [City of Boernev. Flores, 521 U.S. 507 (1997)]. Several states have adopted "mini-RFRAs," which protect religious liberty as a matter of state law. The constitutionality of those "mini-RFRAs" has not been tested in most states.
The Relation of Free Exercise and Free Speech. The exercise of religion often involves speech. The Supreme Court has wrestled with the relation of the free exercise, free speech and establishment clauses in several cases during the 1980s and 1990s. The University of Missouri at Kansas City allowed registered student groups to use generally available facilities for meetings. In the late 1970s, UMKC refused to allow a registered religious group named Cornerstone to use its facilities after the Board of Curators prohibited the use of University property for religious worship or religious teaching. The Court held that barring a registered student group from using a generally available facility because the group was religious constituted impermissible discrimination on the basis of content of the group's speech (i.e., that its speech was religious in nature). Further, the University's "equal access" policy, granting to registered groups the right to use open rooms, did not raise establishment clause concerns, because the University did not place its imprimatur of approval on the religious activities of Cornerstone, nor did it attempt to advance religion by creating an open forum [Widmar v. Vincent, 454 U.S. 263 (1981)].
Shortly after Widmar, Congress adopted the Equal Access Act (1984), which prohibited high schools from refusing access to religious and philosophical groups if the school granted access to other noncurricular groups. The Court held the Equal Access Act constitutional in Board of Education v. Mergens, 496 U.S. 296 (1990). In 1993, the Supreme Court held that a school district violated the free speech clause of First Amendment by denying a church access to school premises to show a film after school hours solely because the film dealt with a subject from a religious standpoint, and allowing church access to school premises would not have been an establishment of religion [Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993)]. In Good News Club v. Milford Central School,, 121 S.Ct. 2093(2001), a closely divided Supreme Court held that the refusal of a public school district to permit a religious organization to use its facilities after school hours because the organization was teaching moral lessons from a Christian perspective through live storytelling and prayer constituted viewpoint discrimination in violation of the free speech clause. The Court determined apposite the decision in Lamb's Chapel, because the only difference between the two cases was the inconsequential distinction that in the former case, religious and moral lessons were taught through films, in the latter case, those lessons were taught through storytelling and prayers.
The Court returned to the issue of the relation of religion and speech in two cases in 1995. In Capitol Square Review & Advisory Board v. Pinette, 515 U.S. 753(1995), the issue concerned the constitutionality of the government's refusal to allow the unattended display of a cross in a public forum. A closely divided Court held that private religious speech was fully protected by the free speech clause of the 1st Amendment. The board's refusal to allow the display of the cross was unconstitutional. The dissenters argued that the establishment clause should be interpreted to create strong presumption against the installation of unattended religious symbols on public property. In Rosenberger v. Rectors and Visitors of the University of Virginia, 515 U.S. 819 (1995), the University of Virginia refused to pay for the printing costs of paper printed by a recognized student organization because the paper "primarily promotes or manifests a particular belie[f] in or about a deity or an ultimate reality." This, the University claimed, violated the establishment clause. The divided Court held that, because the University's decision discriminated against the student organization on the basis of the viewpoint of the organization (e.g., that there is a God), the University violated the free speech clause. Paying for the printing costs of the paper did not violate the establishment clause because the University's reimbursement scheme was neutral toward religion, neither advancing nor inhibiting religion by its action in paying for the printing costs of a paper distributed by a student organization recognized by the University. The dissenters claimed that the establishment clause required some justification beyond "evenhandedness." Direct funding of sectarian activities were inconsistent with the establishment clause, even if the funding was undertaken as a matter of evenhandedness.
The Court remains closely divided on the interpretation of the free exercise clause, and on the application of the free speech clause to religious speech. It appears unlikely that this division will heal any time soon.
Religious Establishment. Since the Supreme Court first applied the establishment clause in 1947 to state as well as federal action, it has regularly attempted to mark the proper boundary between religion and government interaction. As discussed more fully below, the Court has rarely reached consensus about the proper interpretation of the establishment clause. This has meant a bewildering array of cases and "tests" about the establishment clause. Those who read the Court's establishment clause decisions often leave befuddled and frustrated, for the members of the Court begin with widely differing premises, which often lead the Justices to diametrically opposed positions.
The more the Supreme Court has decided establishment clause cases, the wider the circle of types of cases it has decided. For most of the last half-century, however, the Court has focused on the interaction between government and religion in the field of education, both public education and religious education. Those parents who send their children to public schools are often of many different faiths, or of no religious faith. From 1947 to the present, the Supreme Court has issued a number of rulings attempting to demarcate the constitutional boundaries imposed on public school officials when claims of religious establishment are raised. For those parents who send their children to religious schools, the recurring question is the extent to which the state may pay, either directly or indirectly, for any costs attributable to that religious education. The result, after more than 50 years of trying, is a muddle. The Supreme Court, as discussed below, has offered a number of different "tests" concerning the meaning of religious establishments, and the current state of the law is largely a mess.
Public Transportation. The first modern case decided by the Supreme Court is Everson v. Board of Education, 330 U.S. 1 (1947). A New Jersey township school board, acting pursuant to state law, reimbursed parents for the costs in sending their children to local parochial schools on municipal buses. A severely divided Court held that, though the actions of the school board were subject to the constraints of the establishment clause, the reimbursement scheme did not violate that clause. Both the majority, in an opinion by Justice Hugo Black, and the dissent, in an opinion by Justice Wiley Rutledge, agreed that the clause against an establishment of religion was intended to erect "a wall of separation between Church and State." The unanimous adoption of Thomas Jefferson's "separationist" standard (which he crafted while President in a Jan. 1, 1802, letter to the Danbury Baptist Association) masked the marked disagreement about the application of the "wall of separation" to the township's reimbursement scheme. The five-man majority concluded that spending tax monies to pay for the transportation of schoolchildren to parochial schools was part of a general program aiding all children to make their way to school. For the majority, these services were "indisputably marked off from the religious function" of the schools. Consequently, the government was not supporting the religious schools, but merely helping parents get their children, regardless of their religion, to school. The four dissenters concluded that paying the transportation costs to and from parochial school aided those parents and children "in a substantial way" to obtaining religious training, which they concluded was barred by the establishment clause.
The central difficulty with Everson was the implicit conflict between the claim that "absolute" separation was required between church and state, and the conclusion that the public transportation of schoolchildren was a permissible welfare measure. The effort by the majority to avoid this conflict by focusing on the fact that the benefit was not to the parochial school, but to the child attending the parochial school (the "child benefit" theory), merely removed the conflict one step. Arguably, the parochial school was the ultimate beneficiary even though the money was given to the parents of the schoolchildren rather than to the school itself. Justice Rutledge made this very argument in dissent in Everson, claiming that "it cannot be said that the cost of transportation is no part of the cost of education or of the religious instruction given." Consequently, concluded the dissent, the reimbursement scheme violated the required separation of church and state. The five-to-four division of the Court in Everson was a harbinger of what was to come.
Released Time. One year later the Court held unconstitutional the released time program in existence in the Champaign, Illinois, school district. Public school students were given religious instruction for between 30-45 minutes per week in their schools if their parents requested such instruction. Those who were not given religious instruction left their classrooms for secular instruction elsewhere. Again speaking for the Court, Justice Black held the program unconstitutional. Justice Black concluded that the public school system could not be used to aid religion [Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203 (1948)]. The only dissenter, Justice Stanley Reed, concluded that, based on custom and particular historical practices (e.g., military chaplains, prayer in public schools), this aid to religion was consistent with the principle of religious liberty. Justice Reed also criticized the Court's reliance on the "wall of separation of church and state" metaphor, claiming that "[a] rule of law should not be drawn from a figure of speech."
Four years later, the Court softened its position on released time, holding constitutional a New York City program in which public school children were released from their schools to attend religious instruction off school property during the school day [Zorach v. Clauson, 343 U.S. 306 (1952)]. Justice Douglas's majority opinion included the statement, "We are a religious people whose institutions presuppose a Supreme Being," and held that the principle of separation was modified by the principle of neutrality toward religion. Otherwise, the principle of separation led to hostility between religion and the state. Justice Black dissented, finding no difference between the Illinois and New York programs.
The Court, with the exception of a couple of church property cases discussed above, then remained silent concerning religion for nearly a decade. After holding constitutional Sunday closing laws against both free exercise and establishment clause challenges, the Court held impermissible a Maryland constitutional requirement that public officials declare a belief a God, on the ground that the provision was a religious test for office [Torcaso v. Watkins, 367 U.S. 488 (1961)]. Within two years, the Court created a firestorm with its decisions in two public school prayer cases.
State prescribed prayer. New York Regents recommended that public schoolchildren recite the following prayer at the beginning of the school day: "Almighty God, we acknowledge our dependence upon Thee, and we beg thy blessings upon us, our parents, our teachers, and our country." For the Court, Justice Black held the recommended prayer violative of the establishment clause because it was composed by state officials and was designed to advance religious beliefs [Engel v. Vitale, 370 U.S. 421 (1962)]. The next year, the Court held unconstitutional an officially sponsored reading of the Bible and the recitation of the Lord's Prayer at the beginning of the public school day [Abington School District v. Schempp, 374 U.S. 203 (1963)]. Although both decisions relied heavily on Jefferson's "wall of separation" metaphor as the touchstone for understanding the meaning of the establishment clause, the Court suggested a more particularized approach to determining the constitutionality of government actions challenged pursuant to that clause. In his opinion for the Court in Schempp, Justice Tom Clark held that the government's action must have 1) a secular purpose and 2) a primary effect that neither advanced nor inhibited religion.
The Court's decisions were largely unpopular with the public and with Congress. A number of efforts to overturn the school prayer decisions by constitutional amendment have been initiated by members of Congress since 1963. All have been unsuccessful. The public clamor for reversal of school prayer decisions subsided over time, which may be attributed in part to grudging acceptance of the decision and to the fact that public school officials in some areas of the United States refused to acknowledge the decisions, and continued to condone the saying of school prayers into the 1970s.
The Supreme Court did not return to the issue of prayers in public schools for nearly two decades. In 1980, the Court held that the posting of the Ten Commandments in public school classrooms violated the establishment clause because there existed no secular purpose in doing so [Stone v. Graham, 449 U.S. 39 (1980)]. Five years later, the Supreme Court held unconstituitional an Alabama law authorizing a moment of silence "for meditation and voluntary prayer" at the beginning of the public school day. The Court noted that the sole purpose for the law was the nonsecular purpose of returning voluntary prayer to the public school [Wallace v. Jaffree, 472U.S. 38 (1985)]. Five members of the Court concluded that some moment of silence laws were constitutional, although they disagreed about the constitutionality of Alabama's law. A number of states have since adopted moment of silence statutes that meet the secular purpose standard. In 1992, the Court barred invocation and benediction prayers at public school graduation ceremonies if they were part of the official school graduation ceremony [Lee v. Weisman, 505 U.S. 577 (1992)]. The majority opinion in Lee was written by Justice Anthony Kennedy. Justice Kennedy's opinion suggested that because the graduation prayers bore the imprint of the government, and because students in effect were obliged to attend graduation, the saying of those prayers required students to participate in a religious exercise, which the establishment clause forbids. The emphasis by the Court on the official nature of the prayers led some student groups to attempt to eliminate any official sanction for an invocation and a benediction by placing the authority to include prayers at graduation with the graduating class rather than school officials. The Court appeared to respond in part to this effort in Santa Fe Independent School Districtv. Doe, 530 U.S. 290 (2000), in which it held unconstitutional a public school district policy concerning studentled prayers given before high school football games. The Court's opinion, written by Justice Kennedy, concluded that though nothing in the Constitution forbade a public school student from praying voluntarily before, during or after school, if the government affirmatively sponsors the practice of prayer, it violates the establishment clause.
Evolution and Public Schools. In 1925, John Scopes was convicted for teaching the theory of evolution in public school contrary to Tennessee state law, although it was almost certain that Scopes did not teach evolution. The trial was a circus, taking place over eight days, but culminating in a mere one hour of testimony. The conviction was reversed based on a legal fiction, but the "lesson" of the trial, according to the press, was that the forces of progress (secular modernism) had routed the forces of superstition (religious fundamentalism). Although the trial ended most efforts in the states to adopt anti-evolution laws, textbook publishers began reducing or even eliminating references to evolution in biology textbooks to avoid controversy. The issue would not arise again until the 1960s. In Epperson v. Arkansas, 393 U.S. 97 (1968), the Supreme Court held unconstitutional Arkansas' anti-evolution statute, calling it a "quixotic prohibition." Those opposed to the teaching of evolution responded to Epperson by lobbying local and state boards of education to require biology textbooks to label evolution a theory and to require the teaching of creationism if evolution was taught in the public school. The State of Louisiana passed a law barring the teaching of evolution unless the school also taught creation science. In Edwards v. Aguillard, 482 U.S. 578 (1987), the Supreme Court held that this law lacked a secular purpose, and thus violated the establishment clause.
Governmental Aid and Private and Parochial Schools. The importance of education in the modern world has been clear to governmental bodies for some time. Since World War II, both the federal and state governments have passed laws attempting to enhance the learning of children in both public and private schools, from the elementary through graduate studies. Laws that provide money either to students who attend (or hope to attend) a religiously affiliated school, or to the school itself, have been regularly challenged since the late 1960s. The Court has been a model of inconsistency, first creating nearly insuperable barriers to governmental aid that affects religious educational institutions, and then relaxing those barriers. It has largely done so through a multipronged establishment clause test, the so-called Lemon test.
The Lemon Test. In 1971, the Supreme Court held that state laws providing salary supplements to teachers in religious schools and reimbursing religious schools for some costs attributable to the teaching of secular subjects violated the establishment clause [Lemon v. Kurtzman, 403 U.S. 602 (1971)]. The Court, in an opinion by Chief Justice Warren Burger, retreated from the separationist standard first enunciated in Everson, noting that the language of the religion clauses "is at best opaque," and that "the line of separation, far from being a 'wall,' is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship." In place of the wall of separation, the Court offered a three-pronged test of constitutionality: 1) the law must have a secular purpose; 2) the principal or primary effect of the law must neither advance nor inhibit religion; and 3) the statute must not foster an excessive entanglement by government with religion. The first two prongs of this test were taken from Schempp, the second school prayer case; the last prong was taken from Walz v. Tax Commission, 397 U.S. 664 (1970), which held constitutional a property tax exemption to religious organizations for its property used for religious worship. Because the proper governmental oversight of the programs created an excessive entanglement because government and religion, the state laws were unconstitutional. Although the Court retreated from the separationist standard, and attempted to replace it with a standard of religious "neutrality," or religious "accommodation," the Lemon test was a severe challenge to those who believed the relation between government and religious educational institutions was too strained and hostile.
Including its decision in Everson, the Supreme Court has decided at least 20 cases concerning the constitutionality of aid that may, directly or indirectly, assist religious schools. The result is a foray into a byzantine world. The Court initially made a distinction between aid that flowed to religious institutions involved in higher education, and aid to religious elementary and high schools. Because the former were not considered "pervasively sectarian," aid to religiously affiliated colleges and universities was permissible because there was little fear of excessive entanglement between religion and government [Tilton v. Richardson, 403 U.S. 672 (1971); Hunt v. McNair, 413U.S. 734 (1973); Roemer v. Board of Public Works, 426U.S. 736 (1976)]. Students in religious elementary and high schools could be lent textbooks by the state (Board of Education v. Allen, 392 U.S. 236 (1968)), but not globes, maps, or audio-visual equipment [Meek v. Pittenger, 421 U.S. 349 (1975); Wolman v. Walter, 433 U.S. 229 (1977)]. In 2000, a divided Court overruled Meek and Wolman, permitting governmental agencies to lend educational materials and equipment to private and religious schools [Mitchell v. Helms, 530 U.S. 793 (2000)]. Although there is some evidence that the Court has retreated on the higher education/compulsory education dichotomy, some Justices continue to argue for its strict enforcement. Parents may take a tax deduction for educational expenses incurred in sending their children to school (Mueller v. Allen, 463 U.S. 388 (1983), and a handicapped student may use state tuition funds to attend a higher religious institution (Witters v. Washington Department of Services For the Blind, 474 U.S. 481 (1986), but parents cannot receive tuition tax credits for sending their children to religious schools (Committee for Public Education v. Nyquist, 413 U.S. 756 (1973). The government may not pay for teachers to provide remedial education for poor children if it takes place at the religious school (Aguilar v. Felton, 473 U.S. 402 (1986), but may pay for an on-premises sign language interpreter who aids a deaf child attending a religious school [Zobrest v. Catalina Hills School District, 509 U.S. 1 (1993)]. An issue the Supreme Court has studiously avoided for a number of years is the constitutionality of a voucher system, in which the state issues an educational voucher that may be redeemed by students at either a public or private school. State and lower federal courts addressing this issue have reached contrary results, and until the Supreme Court speaks, the constitutionality of educational vouchers is unclear.
Additional Approaches to Interpreting the Establishment Clause. In 1789, each House of Congress hired a chaplain to pray at the opening of the legislative day. In 1983, the Supreme Court decided a case concerning the constitutionality of the State of Nebraska's practice of opening each legislative day with a prayer by a chaplain paid by the State. It held that the "unique history" of the practice of hiring government-paid chaplains led it to conclude that the practice did not violate the law because the founders did not believe that the practice violated the 1st Amendment. The Court ignored the Lemon test in favor of this "historical practices" test, which the dissenters claimed was because application of Lemon would have resulted in a contrary result [Marsh v. Chambers, 463 U.S. 783 (1983)]. The next year, in a concurring opinion, Justice Sandra Day O'Connor suggested a revised test for the establishment clause, the "endorsement" test. This test focuses attention on the fact that the important issue was whether the government's action had made adherence to religion relevant to the person's standing in the community [Lynch v. Donnelly, 465 U.S. 668(1984)]. In 1989, the Court's jurisprudence disintegrated. The issues before the Court were whether 1) the placement of a créche on the Grand Staircase of the Allegheny County Courthouse and 2) the placement of a menorah next to a Christmas tree and a sign saluting liberty on public property next to the City-County building were impermissible establishments of religion. No opinion garnered a majority of the Court. Varying coalitions held that the former was unconstitutional but the latter was constitutional. The constitutional difference between the two displays was either because the créche solely promoted a religious message, and the menorah, tree and sign saluting liberty promoted a secular message (opinion of Justice Harry Blackmun) or because the créche solely promoted a religious message, and the menorah, tree and sign promoted a message of pluralism and freedom of belief during the holiday season and did not endorse Judaism or religion in general (opinion of Justice O'Connor). The opinion of Justice Brennan concluded that both displays favored religion, and the establishment clause forbade any governmental action that favored religion over non-religion. The opinion of Justice Kennedy concluded that both displays were constitutional, because the government did not coerce anyone to support or participate in any religion or its exercise [County of Allegheny v. American Civil Liberities Union, 492 U.S. 573 (1989)].
The Supreme Court has never overturned the Lemon test, although it has been the subject of repeated criticism by Justices and legal commentators. The endorsement test suggested by Justice O'Connor has been incorporated by some Justices into the "primary effect" prong of Lemon, and used independently of Lemon by Justice O'Connor and other justices. To determine whether some action of government is an endorsement of religion, the proper perspective is that of the reasonable observer, who is understood to be a well-informed observer. A minority of Justices consider coercion the proper test of an establishment clause violation. For those Justices, the establishment clause is violated only when the government attempts to coerce an individual's religious liberty. A different minority of Justices urge a return to the wall of separation, particular in cases in which aid flows to one or more religious organizations. The former group is more "accommodationist" in its treatment of the relation of government and religion, and the latter is more "separationist" in its understanding of that relationship.
The establishment clause has become one of those fissures in American society that gave rise to the phrase "culture wars." Like much of society, the Court is badly divided about the fundamental principles that guide interpretation of the establishment clause. This division among the Court, which will probably continue for some time, makes clarity in this area of law extremely unlikely.
Bibliography: A general overview of these and other issues of church-state relations is found in m. s. ariens and r. a. destro, Religious Liberty in a Pluralistic Society (1996). The classic history of the relation between religion and government remains: a. p. stokes, Church and State in America 3 v. (1950). A number of studies of the history and the theory of the religion clauses was written in the 1980s. They include: g. v. bradley, Church-State Relationships in America (1987); d. dreisbach, Real Threat and Mere Liberty: Religious Liberty and the First Amendment (1987); and j. t. noonan, jr., The Believer and the Powers That Are (1987). A critical study of the Supreme Court's efforts in this doctrinal area is: s. d. smith, Foreordained Failure (1995). Two general histories of religion in America are: m. e. marty, Pilgrims in Their Own Land: 500 Years of Religion in America (1984) and s. e. ahlstrom, A Religious History of the American People (1972).
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