The Establishment Clause. Born: December 15, 1791, Richmond, Virginia. Died after a long period of neglect: June 30, 2020, Washington, D.C. The Establishment Clause is survived by its younger twin, the Free Exercise Clause.

Birth and Childhood

“Congress shall make no law respecting an establishment of religion …”

On a winter’s day in 1791, the Commonwealth of Virginia became the tenth state to approve ten of the amendments that comprise the Bill of Rights, ratifying that change to the Constitution. The first of those rights, the Establishment Clause, amounted to only ten words but would fundamentally shape the development of the United States. They represented a sea change from the known historical practice of the time.

The Founding Fathers—and the true parents of the Establishment Clause, Thomas Jefferson and James Madison—were well aware of the impact of state-supported and endorsed religion and knew well what they were seeking to prevent. No educated person of the time was ignorant of the European wars of religion, pitting Protestants against Catholics, which had ravaged the continent throughout the sixteenth, seventeenth, and eighteenth centuries. The peak of this period of intra-Christian conflict, the Thirty Years War—which ran from 1618 to 1648—had resulted in over eight million deaths, including a reduction of the male population of the German states by almost half.

The history of established religions known to the Founders was one of famine, disease, war, and slaughter. While the Enlightenment core principles of freedom of conscience, speech, and belief were positive motivators—and to many of the Founders represented the best hope for society—so too were their minds guided by fear of the chaos that had afflicted Europe.

Two particular documents preceded the religion clauses of the First Amendment, and both demonstrate a core desire to keep religion and politics separate, maintaining religion as a purely private sphere: uncontrolled by, but also unsupported by, the government. The first, Jefferson’s Virginia Statute for Religious Freedom, was written in 1777 and enacted in 1786. This law disestablished the Church of England, removing its official status in Virginia, and guaranteed religious freedom. A person’s civil rights and status were to be separate from his religion, marking a departure from British law under which Roman Catholics could still not sit in Parliament. The Virginia Statute went further to prohibit all financial support from taxpayers to religious organizations, stating that “no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever.”

The second precursor was Madison’s Memorial and Remonstrance against Religious Assessments (1785). A response to a proposal to provide financial support for Christian teachers from tax payments, the document made clear that Madison could not envisage any public funding of religious groups. Defending the need for religious freedom, Madison wrote that the “religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.” But that freedom, and that separation from secular society, precluded financial support. Madison’s words are as true now as they were in the eighteenth century:

We revere this lesson too much soon to forget it. Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

The Establishment Clause—those precious ten words—was thereby born from a desire to protect religion from the corruption that would come from political involvement but also to protect the state, and the population, from the conflict and bloodshed that government endorsement and enforcement of religion had always brought with it. By and large, for over two centuries, the Establishment Clause performed its task admirably. It stood, as described by Thomas Jefferson in his final letter to the Danbury Baptist Association, written on New Year’s Day 1802, as “a wall of separation between Church and State.”

It was not long before sibling rivalry reared its head, and conflict between the Establishment Clause and the Free Exercise Clause became apparent. To the religious, the right to free exercise went far beyond the right to believe as they wished. Actions undertaken from a religious motivation were claimed as protected as well. In Reynolds v. United States 98 U.S. 145 (1879), the Supreme Court restricted the reach of the Free Exercise Clause here—a Mormon’s freedom of religion did not extend to permit him to ignore the anti-bigamy statute, despite his claim that his religion mandated multiple wives. Society’s rules triumphed. Bigamy remained illegal for all.

Adulthood

As society developed, government actions permeated more of everyday life and the need for the Establishment Clause became ever clearer. As government involvement grew, so did the parade of religious groups seeking special privileges or financial support. It was in the fifty or so years following the end of World War II that the Establishment Clause reached its peak, holding back the never-ending pressure from Christian Nationalists to prioritize religion. While far from being a constantly successful time for secularists,¹ for these years the Establishment Clause and its Wall of Separation largely held the hordes at bay.

• When parochial schools sought financing from the taxpayers’ pockets, the Establishment Clause barred its way, assisted ably by the “No Aid” Clauses that thirty-eight of the fifty states inserted in their constitutions, more tightly controlling the flow of money to religious groups. In particular, the Clause consistently prevented money flowing for explicitly religious purposes. In Aguilar v. Felton 473 U.S. 402 (1985), the Court went so far as to rule that public school teachers providing remedial educational assistance in parochial schools fell afoul of the Establishment Clause.
• When government prayer was suggested, the Establishment Clause protected school children in Engel v. Vitale 370 U.S. 421 (1962). Government-sponsored prayers and worship were prohibited even at voluntary events that made up an integral part of the school experience, such as graduation (Lee v. Weisman 505 U.S. 577 [1992]) and varsity football games (Santa Fe Indep. Sch. Dist. v. Doe 530 U.S. 290 [2000]).
• The law regarding public religious displays was more complicated, but even then, the Establishment Clause flexed its muscles to prevent outright government support for religion. While a nativity display as part of an overall Christmas display also including a Christmas tree and a Santa house was permitted by Lynch v. Donnelly 465 U.S. 668 (1984), a similar scene displayed alone on the courthouse steps was a constitutional violation, according to County of Allegheny v. ACLU 492 U.S. 573 (1989). Similarly, in two rulings on the same day, the Court held that a Ten Commandments monument on the grounds of the Texas State Capitol was allowed as it was part of a group of thirty-eight other monuments and markers in Van Orden v. Perry 545 U.S. 677 (2005), yet the lone display of a framed Ten Commandments copy in Kentucky courthouses was held unconstitutional in McCreary Co. v. ACLU of Kentucky 545 U.S. 844 (2005).
• Regarding the teaching of religion in our schools, the Establishment Clause was used to rule firmly against creationism and in support of teaching evolution. An Arkansas law prohibiting the teaching of evolution was overturned as being a legislative support of religion in Epperson v. Arkansas 393 U.S. 97 (1968). When Christian Nationalists sought to present the theory of intelligent design as science to teach in public schools, once again it was the Establishment Clause that barred the way: Kitzmiller v. Dover Area School District 400 F. Supp. 2d 707 (M.D. Pa. 2005).
• As well as preventing affirmative support for religion, the Establishment Clause promoted equality for the nonreligious. As the Court announced, “The First Amendment mandates government neutrality between religion and religion, and between religion and nonreligion” in Epperson 392 U.S. at 104. Atheists could not, due to the Establishment Clause, be prevented from becoming notaries public, declared Torcaso v. Watkins 367 U.S. 488 (1961); nor could religious workers receive automatic priority to receive their chosen Sabbath off work over the secular interests of nonreligious workers under Estate of Thornton v. Caldor, Inc. 472 U.S. 703 (1985).

Decline

It became clear, as House Stark famously said, that winter was coming. As the balance on the Supreme Court shifted, so the Establishment Clause slipped out of favor. The preferred test of Lemon v. Kurtzman 403 U.S. 602 (1971), a case that struck down a Pennsylvania law reimbursing religious schools for textbooks and teacher salaries,² was modified and often simply pushed aside. Exceptions to the Establishment Clause were created by the Supreme Court, such as the historical exemption that was used to permit Christian prayer before legislative meetings in Nebraska and the public payment of a chaplain for no real reason other than it had long been done that way: Marsh v. Chambers 463 U.S. 783 (1984).

The struggle between the Establishment Clause and its younger brother, the Free Exercise Clause, grew. At one end of the spectrum, the Establishment Clause prohibited government actions that could be seen as benefiting or advancing religion; on the other end, the Free Exercise Clause prohibited hindering religion. In between lay an area where the government was neither banned by the Establishment Clause from acting nor compelled to act by the Free Exercise Clause. This area of government freedom, such as permitting the government to include religious groups in tax exemptions but not requiring them to do so, became known as the “play in the joints”: Walz v. Tax Comm’n of N.Y. 397 U.S. 664, 669 (1970). Two decades later, the Establishment Clause was still strong enough to find that tax benefits could not be awarded solely to religious groups under Texas Monthly v. Bullock 489 U.S. 1 (1989).

Supreme Court decisions expanded this notion of a “play in the joints” and permitted more and more actions favoring religion. While the Court never explicitly overruled the Lemon Test, it applied it less frequently and less rigorously. The notion of religious freedom was expanded, and where the federal courts proved unwilling to allow Free Exercise to further undercut the Establishment Clause, Congress stepped up to the plate.

In 1990, Justice Antonin Scalia, not known as either a dangerous radical or an enemy of religion’s role in society, wrote his opinion in Employment Div. v. Smith 494 U.S. 872. He ruled that the Free Exercise Clause did not mandate a right to use a controlled substance (in this case, peyote) as part of a religious ceremony. It was the response to this seemingly self-evident decision—that religion does not possess a get-out-of-jail-free card when it comes to the laws we all obey in society—that marked a fatal moment in the history of the Establishment Clause.

Congress’s response, the Religious Freedom Restoration Act of 1993 (RFRA), was to seek to create a legislative right where the Court had said no constitutional one existed. Under RFRA, where a law substantially burdened a sincerely held religious belief, the religious individual or group is entitled to an exemption to the law, unless the government can demonstrate the law serves a compelling interest in the least restrictive fashion possible. This represents the highest burden the courts place on a government action, similar to restrictions on freedom of speech. On the surface, this merely returned the situation to that prior to Scalia’s decision, reinstating the Sherbert rule. This rule was born from the case of a textile worker fired for refusing to work on the Sabbath; the Court ruled she was entitled to unemployment benefits, as compelling her to work that day on pain of losing benefits would infringe her religious freedom: Sherbert v. Verner 374 U.S. 398 (1963). RFRA, however, with the complicity of the Supreme Court, expanded the scope of “religious freedom” to include acts that harmed third parties, mandating exemptions to multiple laws that would never have been considered under the prior regime.

Multiple times the Supreme Court has had the opportunity to reinvigorate the Establishment Clause in face of RFRA, and multiple times it has refused to do so. The method was simple: RFRA grants exemptions to religious groups and religious groups only. It allows a law to apply to all of society—but not to those whose opposition is religion-based. A member of a Native American religion must be permitted to smoke peyote as part of a religious ceremony; an atheist, on the other hand, is prohibited from smoking the same peyote to enhance his or her appreciation of a Grateful Dead album. Moreover, the exceptions granted to the religious under RFRA are not victimless. When, for example, a chain of crafting stores is granted an exemption to the contraceptive mandate of the Affordable Care Act, third parties in the form of employees of that chain no longer eligible for zero co-pay contraception coverage are harmed (Burwell v. Hobby Lobby Stores 573 U.S. 682 [2014]). Here and in other cases addressing RFRA, the Supreme Court could have ruled it unconstitutional on the grounds that it granted privileges to religion that were unavailable to other groups in society. By choosing not to, and instead presiding over the expansion of RFRA, the Supreme Court irreversibly wounded the Establishment Clause. Indeed, Justice Samuel Alito’s opinion in Hobby Lobby failed to even mention the Establishment Clause, speaking only of religious freedom. It was left to Justice Ruth Bader Ginsburg, in dissent, to point out that such favoring of religion and particular religious views was the “very risk the Establishment Clause was designed to prevent.”

Recent years have seen the spread of religious exemptions, unchecked by Supreme Court application of the Establishment Clause. From the relatively mundane, such as a religious right to grow a beard in prison, Holt v. Hobbs 574 U.S. ___ (2015),³ to the broad impact of the contraceptive insurance decisions, the Court has sat back and allowed the Establishment Clause to atrophy and cease to function as a brake on religious privilege. In the 1960s, the Supreme Court dismissed in a mere footnote the notion that a person’s religious reasons for their racism might provide them with an exemption to Civil Rights laws in Newman v. Piggie Park Enterprises, Inc. 390 U.S. 400 (1968). No longer, as the Court entertains arguments from religious businesses that RFRA creates a right to ignore legal protections granted to the LGBTQ community (Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission 584 U.S. ___ [2018]).

Beyond this, the Establishment Clause was reeling from a series of body blows from the Supreme Court that restricted its application or viewed the Free Exercise Clause’s reach as more extensive and important.

• With legislative prayer, Town of Greece v. Galloway 572 U.S. 565 (2014), the Court determined that local legislative sessions, attended and participated in by the public, could be opened by sectarian religious prayer.
• Parochial schools became eligible for taxpayer dollars in the form of school vouchers, with the Court maintaining that as long as the payment was made to the parent, who then chose the school, the Establishment Clause’s prohibition on funding religion remained intact: Zelman v. Simmons-Harris 536 U.S. 639 (2002).
• In American Legion v. American Humanist Association 588 U.S. ___ (2019), a forty-foot concrete Latin Cross war memorial on public ground in Bladensburg, Maryland, was somehow seen as sufficiently religious to violate the Establishment Clause, given its long history. To Justice Alito, writing for the Court, its removal would demonstrate aggressive hostility toward religion; to him, a robust defense of the Establishment Clause or, indeed, any historically based critique of religion, was discriminatory by itself.
• The Court in Trinity Lutheran Church of Columbia v. Comer 582 U.S. ___ (2017), struck a blow to the states’ no-aid provisions, finding that a church, despite Missouri’s clear prohibition on funding sectarian organizations, was entitled to state funding to resurface its children’s play area. Despite the Establishment Clause, states were no longer permitted to refuse to fund religious groups where they funded nonreligious ones.
• Our Lady of Guadalupe School v. Morrissey-Berru 591 U.S. ___ (2020), extended the ministerial exception, a doctrine that allows religious groups complete free rein to appoint their own leaders, to include teachers at religious schools (and, by extension, religious universities and hospital groups) even when the school did not require them to share the organization’s faith. As such, those employees would have no right to sue under anti-discrimination laws if terminated or not hired. Once again, despite the Establishment Clause, this is a privilege available only to the religious.

Death

On June 30, 2020, Chief Justice John Roberts, accompanied by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, pulled the plug on the life-support machine that had been maintaining the faint pulse of the Establishment Clause. Their decision, in Espinoza v. Montana Dept. of Rev. 591 U.S. ___, was expected but no less damaging for that.

Montana had established a tax credit for donors to a scheme that would provide vouchers for children attending private schools in the state, the overwhelming majority of which were religious. When the Department of Revenue ruled that the state’s no-aid provision prohibited the vouchers subsidizing education at religious schools, a suit was filed. The Montana Supreme Court then struck down the entire program.

No program thereby existed that discriminated against religion. No student or school was in a worse place because of their religious identity. Yet the Supreme Court not only took up the case, it ruled that the scholarship program must be reinstated and must permit religious schools to participate. The opinion is notable on multiple levels. In requiring voucher programs to fund religious schools, it, at a stroke, ruled the no-aid provisions of thirty-eight states unconstitutional. And to do so, it based its opinion on a highly disputable reading of history that tarred no-aid provisions as the product of discriminatory, anti-Catholic bias.

The decision took standing law—the baseline requirement that an individual must have an active dispute causing real harm to proceed in court—and threw it out of the window. To reach the decision the Court wanted—that is, the invalidation of no-aid provisions—it accepted a case with no active dispute. The program no longer existed. As the dissents noted, there were no victims; no one suffered discrimination. Then, the Court, rather than trusting a state to follow an order to rectify a federal constitutional violation, instead demanded that the program should be reinstated. The Court, of course, gave no advice to lower courts in the future to determine just which eliminated programs in states must be resurrected; such a determination will come in the future.

Hundreds of thousands of words will be written on Espinoza and its place in the terminal decline of the Establishment Clause. Its impact on federalism and standing are yet to be determined. What is clear is that after this decision, the Establishment Clause’s basic tenet—that taxpayer funds may not be raided to pay for religious schooling—is no more. If states fund private secular schools, they must fund private religious ones. Terminating a program so as to fund neither is not an option.

There will be countless academic investigations into the death of the Establishment Clause. While Espinoza marked its final moments, an examination of the body will show a knife labeled RFRA inserted deep in its back. Like many things, the people of America will only truly appreciate it now that it is gone. While the religious wars that the Establishment Clause was written to prevent may not occur, those Americans who hold minority religions, and those who have no faith, will suffer growing discrimination and will watch—unprotected by the legal system—as their pockets are raided to fund the beliefs and rituals of others.

The Establishment Clause will be deeply mourned by a group of secular lawyers and activists. In lieu of flowers, the author requests that donations be made in its honor to the Center for Inquiry.

 

 

---

Notes