"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." So begins the First Amendment to the United States Constitution. The meaning of these words is apparent to even a casual reader: Congress, our national legislature, can neither establish a religion nor prohibit its free exercise. These provisions were incorporated into the Constitution because of the fear that the new federal government would create an established church, as many of the colonies had done.

Since Congress never attempted to establish a church, these constitutional provisions were all but forgotten by the beginning of the twentieth century. Prayers, Bible readings, and religious instruction in the public schools; rental of public facilities by church groups; religious symbols on public property; tax exemptions for religious organizations; and state assistance to religious education were seldom if ever challenged since such practices were plainly far from the congressional establishment of a national religion prohibited by the First Amendment.

However, since 1940, the religion clauses have taken on a new and expanded meaning that is foreign to the objectives of their drafters. This story is the focus of chapter 11.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof … .[1] U.S. Const. amend. 1 (1791).

The First Amendment religion clauses were the product of the egalitarian fervor of the fledgling Republic. The federal legislature—"Congress"—would never be able to commit the sin of many of the colonies: establishment of an official religion. Correlatively, the right of each citizen to "freely exercise" his or her religion was protected from federal encroachment. Justice Stewart, dissenting in the Schempp case, observed:

As a matter of history, the First Amendment was adopted solely as a limitation upon the newly created National Government. The events leading to its adoption strongly suggest that the Establishment Clause was primarily an attempt to insure that Congress not only would be powerless to establish a national church, but would also be unable to interfere with existing state establishments.[2] School District of Abington v. Schempp, 374 U.S. 203, 309-10 (1963). See also Jaffree v. Board of School Commissioners, 554 F. Supp. 1104 (S.D. Ala. 1983) (extensive historical analysis), rev'd, Wallace v. Jaffree, 472 U.S. 38 (1985) (extensive historical analysis by Justice Rehnquist, in a dissenting opinion).

Justice Reed, dissenting in the McCollum case,[3] People of State of Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 244 (1948). observed:

The phrase "an establishment of religion" may have been intended by Congress to be aimed only at a state church. When the First Amendment was pending in Congress in substantially its present form, Mr. Madison said, he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.'' Passing years, however, have brought about acceptance of a broader meaning … .[4] Justice Douglas, concurring in Engel v. Vitale, 370 U.S. 421, 442 (1962), remarked, "I cannot say that to authorize this prayer is to establish a religion in the strictly historic meaning of those words. A religion is not established in the usual sense merely by letting those who choose to do so say the prayer that the public school teacher leads."

Similarly, Justice Powell noted:

At this point in the 20th century we are quite far removed from the dangers that prompted the Framers to include the Establishment Clause in the Bill of Rights. The risk of significant religious or denominational control over our democratic processes—or even of deep political division along religious lines—is remote.[5] Wolman v. Walter, 433 U.S. 229, 263 (concurring in part and dissenting in part). This statement was quoted with approval by a majority of the Supreme Court in Mueller v. Allen, 463 U.S. 388 (1983).

After a comprehensive analysis of the history of the establishment clause, Chief Justice Rehnquist observed:

It seems indisputable from these glimpses into Madison's thinking, reflected by actions on the floor of the House in 1789, that he saw the amendment as designed to prohibit the establishment of a national religion, and perhaps to prevent discrimination among sects … . The framers intended the Establishment Clause to prohibit the designation of any church as a "national" one.[6] Wallace v. Jaffree, 472 U.S. 38 (1985) (dissenting opinion).

Justice Story, writing early in our nation's history, noted that "the real object of the [First] Amendment was … to prevent any national ecclesiastical establishment, which would give to an hierarchy the exclusive patronage of the national government."[7] J. Story, Commentaries on the Constitution 630 (5th ed. 1891).

This construction of the intent of the framers of the religion clauses is supported by the absence of federal court decisions interpreting these clauses for the first one and a half centuries following their enactment. Prayers, Bible readings, and religious instruction in the public schools; rental of public facilities by church groups; religious symbols on public property; tax exemptions for religious organizations; and state assistance to religious education were seldom if ever challenged since such practices were plainly far from the congressional establishment of a national religion prohibited by the First Amendment. In a related context, the Supreme Court has observed that "[i]f a thing has been practiced for two hundred years by common consent, it will need a strong case for the Constitution to affect it."[8] Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922). See also Coler v. Corn Exchange Bank, 250 N.Y. 136, 138 (1928) (Cardozo, J.) ("[n]ot lightly vacated is the verdict of quiescent years").

Thomas Cooley, an eminent 19th-century authority on constitutional history, observed that "[n]o principle of constitutional law is violated when thanksgiving or fast days are appointed; when chaplains are designated for the army and navy; when legislative sessions are opened with prayer or the reading of the Scriptures; or when religious teaching is encouraged by a general exemption of the houses of religious worship from taxation for the support of state government."[9] T. Cooley, Constitutional Limitations 471 (1851).

In more recent years, other judges have interpreted the historical precedent as supporting a much broader interpretation of the establishment clause.[10] Everson v. Board of Education, 330 U.S. 1, 31 (1947) (Rutledge, J., dissenting); People of State of Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 212 (Frankfurter, J., concurring). Many would concur with Justice Brennan's conclusion that a too literal quest for the advice of the founding fathers upon these issues is futile and misdirected since "the historical record is at best ambiguous, and statements can readily be found to support either side of the proposition."[11] School District of Abington v. Schempp, 374 U.S. 203, 237 (Brennan, J., concurring). Nevertheless, Justice Brennan conceded that the framers of the First Amendment were "preoccupied" with the "imminent question of established churches."[12] Id.

Three factors have considerably broadened the meaning and effect of the First Amendment's religion clauses, and particularly the establishment clause. The first occurred in 1803 when the United States Supreme Court ruled that "an act of the legislature, repugnant to the Constitution, is void," and that the federal judiciary is the ultimate interpreter of the Constitution.[13] Marbury v. Madison, 1 Cranch 137 (1803). Thereafter, federal judges had the power—nowhere given in the Constitution itself—to invalidate legislation they deemed inconsistent with the Constitution. A law that established a religion, violated an individual's right to freely exercise his or her religion, or contravened any other provision of the Constitution could be invalidated by a federal court. The nature of the American polity had been redefined.

The second factor that considerably extended the scope of the First Amendment was the judge-made doctrine of incorporation expressed in 1937 in the landmark case of Palko v. Connecticut.[14] 302 U.S. 319 (1937). The Supreme Court ruled in Palko that those provisions of the Bill of Rights—the first ten amendments to the federal Constitution—that were "implicit in the concept of ordered liberty" were incorporated into the Fourteenth Amendment's "due process clause" and accordingly became applicable to the states.[15] The Fourteenth Amendment provides in part, "nor shall any State deprive any person of life, liberty, or property, without due process of law … ." It is important to note that the Fourteenth Amendment is a limitation on the power of "States." By comparison, the Bill of Rights, including the First Amendment, was intended to be a limitation solely upon the power of Congress.. This decision was of fundamental significance, for the framers of the Bill of Rights never intended these amendments to apply to the states. Chief Justice Marshall himself, the author of Marbury v. Madison,[16] See note 13, supra, and accompanying text. observed over a century prior to Palko that the provisions of the Bill of Rights "contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them.".[17] Barron v. Mayor and City Council, 32 U.S. (7 Pet.) 243 (1833). See also Adamson v. California, 332 U.S. 46 (1947), in which Justice Frankfurter observed:

Those reading the English language with the meaning which it ordinarily conveys, those conversant with the political and legal history of the concept of due process, those sensitive to the relations of the States to the central government as well as the relation of some of the provisions of the Bill of Rights to the process of justice, would hardly recognize the Fourteenth Amendment as a cover for the various explicit provisions of the first eight amendments … . The notion that the Fourteenth Amendment was a covert way of imposing upon the States all the rules which it seemed important to Eighteenth Century statesmen to write into the Federal Amendments, was rejected by judges who were themselves witnesses of the process by which the Fourteenth Amendment became part of the Constitution. Id. at 63-4. Marshall's admonition was ignored by a majority of the Supreme Court in Palko. In 1940, the Court concluded that the religion clauses of the First Amendment were "implicit in the concept of ordered liberty," and so were limitations upon state as well as federal action.[18] Cantwell v. Connecticut, 310 U.S. 296 (1940). As a result, since 1940 the states have been prohibited from making any law "respecting an establishment of religion, or prohibiting the free exercise thereof … ." And, significantly, the term state has been construed to mean any subdivision or agency of a state. The First Amendment thereby applies to cities, counties, boards of education, and every other level, department, office, or agency of government.

A federal district court judge, in a notable if futile opinion, openly condemned the Supreme Court for its unwarranted extension of the First Amendment religion clauses to the states.[19] Jaffree v. James, 554 F. Supp. 1130 (S.D. Ala. 1983). Ironically, the Supreme Court publicly derided this lower court ruling as "remarkable" and "aberrant."[20] Wallace v. Jaffree, 472 U.S. 38 (1985).

A third factor that has extended the reach of the First Amendment's establishment clause is the willingness of the federal courts, since 1948, to liberalize the concept of "establishment" to such a degree as to prohibit conduct that had been deemed consistent with the First Amendment for over a century and a half.

But the establishment clause is not the only religion clause contained in the First Amendment. There is another: "Congress shall make no law … prohibiting the free exercise [of religion]." This latter clause—the free exercise clause"—is fundamentally incompatible with the philosophy of disestablishment contained in the establishment clause: disestablishment necessarily restricts the free exercise of religion. Thus, the recent judicial emphasis upon disestablishment has at times collided with free exercise interests and with other express and implied rights (speech, assembly, association) contained in the First Amendment. Chief Justice Burger, in Walz v. Tax Commission,[21] 397 U.S. 664, 668-69 (1970). commented on this underlying tension: "The Court has struggled to find a neutral course between the two religion clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other." Similarly, Justice Stewart, dissenting in Schempp,[22] See note 11, supra, at 309. observed, "[T]here are areas in which a doctrinaire reading of the establishment clause leads to irreconcilable conflict with the free exercise clause." The Supreme Court has attempted to synthesize the religion clauses by emphasizing the concepts of "neutrality" and "accommodation." To illustrate, the Court has observed:

The general principle deductible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly prescribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.[23] Walz v. Tax Commission, 397 U.S. 664, 669 (1970).

The Court has also stated:

[T]his Court repeatedly has recognized that tension inevitably exists between the Free Exercise and the Establishment Clauses … and that it may often not be possible to promote the former without offending the latter. As a result of this tension, our cases require the State to maintain an attitude of "neutrality," neither "advancing" nor "inhibiting" religion.[24] Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 788 (1973).

In Zorach v. Clauson,[25] 343 U.S. 306 (1952). the Court spoke of the need of "accommodating" the religious needs of the people.

Notwithstanding the emphasis upon "neutrality" and "accommodation," there is a marked judicial preference for the establishment clause over the free exercise clause. Chief Justice Rehnquist observed:

The Court apparently believes that the establishment clause of the First Amendment not only mandates religious neutrality on the part of government but also requires that this Court go further and throw its weight on the side of those who believe that our society as a whole should be a purely secular one. Nothing in the First Amendment or in the cases interpreting it requires such an extreme approach to this difficult question, and any interpretation of the establishment clause and constitutional values it serves must also take account of the free exercise clause and the values it serves.[26] Meek v. Pittinger, 421 U.S. 349, 395 (1975) (Rehnquist, J., dissenting).

Chief Justice Burger observed: "One can only hope that, at some future date, the Court will come to a more enlightened and tolerant view of the First Amendment's guarantee of free exercise of religion … ."[27] Meek v. Pittinger, 421 U.S. 349, 387 (1975) (Burger, C.J., dissenting).

Ironically, the Supreme Court, in the same decision that outlawed voluntary, school-sponsored Bible readings on the ground that they violate the establishment clause, acknowledged that "the state may not establish a 'religion of secularism' in the sense of affirmatively opposing or showing hostility to religion, thus preferring those who believe in no religion over those who do believe."[28] School District of Abington v. Schempp, 374 U.S. 203, 225 (1963).

The continuing frustration by the Supreme Court and lower federal courts of voluntary religious practices that are perceived as legitimate by a substantial majority of the public may one day prompt a reassessment of the meaning of First Amendment religion clauses.