Civil Rights and Civil Liberties – 1st Amendment – Let Us Pray: The Establishment Clause
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Civil Rights and Civil Liberties – 1st Amendment – Let Us Pray: The Establishment Clause

>>Dr. Justin Wert: The 1st Amendment’s religion
clause seems to pull us in two different directions: “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof.” These two clauses
seem to protect two different rights — not one general right. As we’ll see, the application
or enforcement of one of those rights can often implicate the other. Guaranteeing one’s
free exercise rights, for example, can sometimes put the government in a position where it
seems that its promoting one religion over another. The United States has a unique history with
respect to religious freedom. As many of you already know, many of the first Americans
to arrive at our shores did so to escape religious persecution elsewhere and to insure religious
freedom for themselves and their families. However, some of these same groups also immediately
began to prosecute and punish those who did not conform to their particular religious
beliefs. In fact, many colonies — and then states
— had official religion and required universal participation, even sometimes tying that participating
to voting requirements. To be sure, there were exceptions, like Roger Williams, who
fled to Rhode Island, that do represent a strong dissenting tradition in American History. These differing histories mean that even to
this day we still disagree about the origins and intentions of those who wrote the clause.
As we’ll see, these histories, often selected by Justices and others in a way that supports
their own preferred outcomes in these cases, are an important development of Establishment
jurisprudence on the Court. We should also note that, next to the Free
Speech clause, the Establishment clause is one of the earliest clauses to be incorporated
or applied against the states. This adds another layer on top of Establishment jurisprudence.
Not only is it difficult to give exact meaning to what Establishment means, but the added
dimension of federalism further complicates the matter. Maybe establishment should be
applied or incorporated against the states, but maybe states should allow for some variation
in their ability to deal with religion. As we study these cases, it’s important to
keep in mind that one of our goals in this course is not only to understand these ideas
as constitutional and legal ones, but also as historical concepts. This means that we
need to pay attention to the different and changing ways that the Court will interpret
the clauses we study. And establishment is no different. As you read, you’ll see three distinct periods
of development or change that characterize the overall decisions of the court in establishment
cases. After the clause is incorporated against the
states in 1940. We see that during the 1940’s and 50’s the court adopts what is called “strict
separation.” This means that states will not violate the Establishment clause if their
policies are neutral toward any one religion and if these policies are for secular purposes.
However, there can be some indirect benefits that religion can enjoy. We’ll see this in
the Everson case involving state support for school busing for parochial school students
in New Jersey. It is during this period, moreover, that the Court announces that it will use
Thomas Jefferson’s “wall of separation” metaphor as a guiding historical justification for
its establishment clause cases. But in the 1960’s the Warren Court will adopt
an even more restrictive stance. Here, states will not run afoul of the establishment clause
if their policies are neutral and secular, but there can be NO direct or indirect benefits
flowing to religion. This will be the high watermark for what some call the Court’s disestablishment
jurisprudence. In cases like Engel v. Vitale, for example, prayer in schools is deemed to
violate the establishment clause. Cases like this, and especially the Court’s approach
to them, have been controversial ever since. Finally, from the 1970’s to today, the Court
has adopted what we call a more accomodationist approach. There still needs to be a secular
purpose behind state policies and regulations, but aid and benefits to religion are permitted
in some cases. Since the 1970’s, moreover, the Court has
developed “tests” to determine the conditions under which state policies and regulations
violate the establishment clause. The tests are designed by the Court to help them decide
in a seemingly neutral way such an important issue such as establishment. We’ll see the
Court move from a secular-purpose/secular effects test to a test called the “Lemon Test,”
from a case in the early 1970’s that added another requirement beyond secular purpose
and secular effect to try and accommodate religion which was that the policy in question
cannot foster an “excessive” entanglement between government and religion. Over the
last few decades, though, some on the Court have utilized the Lemon test, but others have
not. Some have even added more tests, like whether a prayer at a high school graduation
might “psychologically coerce” students, thus violating the establishment clause. So as you read, think about, and critique
the establishment clause cases, think about the following questions? Which approach — if any — that the Court
has taken makes the most sense to you? Should the government — and the Court — even
be involved in establishment clause issues beyond simply refusing to support one religion
or church over another? Which test, if any, developed by the Court
seems to best understand and enforce the establishment clause? Could you develop a neutral test for
determining when state policies, laws, and regulations run afoul of the establishment
clause? And finally, does government involvement with
religion — no matter how small and seemingly innocuous — have the potential to hurt both
government AND religion?

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