The First Amendment's Establishment Clause

This article explains the historical context and essential legal principles related to the establishment clause. It also summarizes essential Supreme Court case law, illustrating the Court’s move from a strict separationist approach to one more accommodating of religious expression in public settings.

What the Establishment Clause Says

The establishment clause is part of the First Amendment of the U.S. Constitution. It states:

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

The establishment clause protects religious freedom. It balances religious liberty with government neutrality. The framers crafted it to create a secular government that does not favor one religion over another.

Although the Constitution explicitly calls out Congress here, the Supreme Court has interpreted the First Amendment to apply to the federal government as a whole. It also extends to state and local governments through the Fourteenth Amendment, as established in Cantwell v. Connecticut (1940).

This means the establishment clause often has important implications for many public institutions, such as:

• Public Schools: There are restrictions on school-led prayers and religious observances, as seen in cases like Engel v. Vitale and Abington School District v. Schempp.
• Public Buildings: The constitutionality of religious symbols on public property depends on their context and purpose. This is demonstrated in cases like Lynch v. Donnelly and County of Allegheny v. ACLU.

The establishment clause works with the First Amendment’s free exercise clause, which protects individuals’ rights to practice their religion. The First Amendment is part of the Bill of Rights, the first ten amendments to the Constitution that safeguard fundamental liberties.

Historical Context

The origins of the establishment clause can be traced back to the historical religious persecution in Europe. Many American colonists fled to America seeking religious freedom. In Europe, state-sponsored religions often led to discrimination and persecution of those who held different beliefs. For example, the Church of England was the established church in Great Britain. Dissenters faced legal penalties and social ostracism.

Influential figures like James Madison and Thomas Jefferson envisioned America as a safe country for different religious groups and religious practices. A country where each person could freely choose and practice their faith. Madison was specifically influenced by the Virginia Statute for Religious Freedom drafted by Jefferson. The statute declared that no person should be compelled to attend or support any religious worship, place, or ministry.

The American colonists aimed to create a nation where each person could freely choose and practice their faith. A nation where religious practice would be free of federal government interference. This vision included a wall of separation between religious institutions and the government. This wall would ensure that the federal government would not favor one religion over another. It would also prevent the government from becoming entangled in religious affairs.

Legal Tests and Principles

The Supreme Court has developed several tests to determine whether a government action violates the establishment clause:

1. Lemon test: A law must have a secular purpose, its primary effect must neither advance nor inhibit religion, and it must not result in excessive entanglement with religion.

2. Endorsement test: Government actions must not endorse or disapprove of religion.

3. Coercion test: The government must not coerce individuals to participate in religious activities.

4. Historical analysis: In recent years, the Court has emphasized that the establishment clause “must be interpreted by reference to historical practices and understandings.” This approach examines how the Founding Fathers and early Americans understood the relationship between government and religion, rather than applying abstract legal tests.

We discuss the Supreme Court’s analysis of the establishment clause in key cases below.

Key U.S. Supreme Court Cases

Several landmark establishment clause cases have interpreted and applied the establishment clause:

Everson v. Board of Education

At issue in Everson v. Board of Education (1947) was a state law that allowed state funds to be used for transportation to parochial schools. The plaintiff argued that this law violated the establishment clause. The plaintiff argued that the law did this by indirectly supporting religious schools.

The Supreme Court ruled in favor of the Board of Education. The Court found that the funds were provided to parents for the general welfare of children. They were not given directly to religious institutions. The Court’s reasoning emphasized that government actions must remain neutral toward religion. This case established the principle of “separation of church and state.” It set a precedent for future establishment clause cases.

Engel v. Vitale

In Engel v. Vitale (1962) a group of parents, led by Steven Engel, sued William Vitale, the president of the Board of Education of Union Free School District No. 9 in New York, over a state-sanctioned prayer recited in public schools. The prayer was non-denominational but still religious in nature.

The Supreme Court ruled that official school prayers were unconstitutional. Even if voluntary and non-denominational. The Court reasoned that public schools, as government entities, must not sponsor religious activities. This decision reinforced the separation of church and state. It highlighted the importance of maintaining government neutrality in religious matters.

Lemon v. Kurtzman

In Lemon v. Kurtzman (1971) Alton Lemon sued David H. Kurtzman, the Superintendent of Public Instruction of Pennsylvania. At issue was state laws in Pennsylvania and Rhode Island that provided financial support to non-public (primarily religious) schools.

The Supreme Court ruled that these laws violated the establishment clause. The Court also introduced the Lemon Test. The Lemon Test requires that a law must meet three requirements. The law must:

• Have a secular purpose
• Not advance or inhibit religion
• Avoid excessive entanglement with religion

The Court reasoned that, in this matter, the financial support created an excessive entanglement between government and religion.

In the decades that followed, the Supreme Court gradually moved away from strict reliance on the Lemon test. In recent cases, including Kennedy v. Bremerton (discussed below), the Court has emphasized historical practices and the original meaning of the establishment over the Lemon test, which the Court described as having “shortcomings” and being “long ago abandoned.”

Lee v. Weisman

The issue in Lee v. Weisman (1992) was the inclusion of a prayer at a graduation ceremony. The principal of a public middle school invited a rabbi to deliver the prayer.

The Supreme Court ruled that the school’s action violated the establishment clause. The Court’s reasoning was that the school coerced students to participate in a religious exercise. This breached the constitutional separation of church and state. Justice Kennedy wrote the majority opinion, emphasizing the coercive nature of the prayer.

Zelman v. Simmons-Harris

Zelman v. Simmons-Harris (2002) addressed a school voucher program in Cleveland, Ohio. The program provided tuition aid in the form of vouchers to parents. The vouchers could be used to send their children to participating public or private schools. This included religious schools.

The Supreme Court ruled that the program did not violate the establishment clause. The Court’s reasoning was that the vouchers were given to parents, who could choose where to use them. Therefore, the government’s neutrality concerning religion was maintained. This case is historically significant for upholding the constitutionality of school voucher programs that include religious schools.

Van Orden v. Perry

In Van Orden v. Perry (2005) Thomas Van Orden sued Rick Perry, then-governor of Texas. The suit was over the constitutionality of a Ten Commandments monument on the Texas State Capitol grounds. Van Orden argued that the monument violated the establishment clause.

The Supreme Court ruled that the monument did not violate the establishment clause. The Court’s reasoning was that the monument had historical and educational significance and was part of a larger display of historical markers. The Court determined that the context of the monument was relevant. As such, it was deemed constitutional.

Town of Greece v. Galloway

Town of Greece v. Galloway (2014) involved a New York town’s practice of opening its monthly board meetings with a Christian prayer. The plaintiffs argued that this practice violated the establishment clause.

The Supreme Court ruled that the practice did not violate the establishment clause. The Court’s reasoning was that as long as the prayer did not coerce participation and allowed for a diversity of religious views, it was not unconstitutional. This case is historically significant for allowing legislative prayers under certain conditions, emphasizing the importance of context and inclusivity.

Kennedy v. Bremerton School District

Kennedy v. Bremerton School District (2022) involved high school football coach Joseph Kennedy, who was suspended for kneeling and praying quietly at midfield after games. Kennedy had practiced this personal prayer for over seven years without complaints.

In 2015, the Bremerton School District learned of his prayers and ordered him to stop, fearing it would violate the establishment clause by appearing to endorse religion. The district offered to let Kennedy pray privately behind closed doors, but he refused and continued his brief, solitary prayers after three October games.

Kennedy sued in federal court, claiming violations of his First Amendment rights. The district court and Ninth Circuit ruled against him, but the U.S. Supreme Court reversed in a 6-3 decision.

The Court held that Kennedy’s quiet, personal prayers were protected speech and religious exercise. The majority explicitly rejected the lower courts’ reliance on the Lemon Test and endorsement test, instead adopting an approach focused on historical practices and understanding.

In doing so, the Court rejected the district’s establishment clause concerns, ruling that the Constitution does not require hostility toward private religious expression and that Kennedy’s prayers did not coerce student participation.

For public employees and institutions, the Kennedy decision suggests that private religious expression by government employees during personal time is generally protected, and that governments should not assume they must suppress such expression to avoid establishment clause violations.