The clearest evidence that the framers of the First Amendment’s Establishment Clause intended only to prohibit the creation of a national church is the virtual absence of any judicial decisions applying the clause in the first century and a half following its adoption despite countless state and federal accommodations of religion.1 This construction is also amply supported by historical evidence. See, e.g., Wallace v. Jaffree, 472 U.S. 38 (1985) (dissenting opinion of Justice Rehnquist); R. Cord, SEPARATION OF CHURCH AND STATE: HISTORICAL FACT AND CURRENT FICTION (1982); chapter 11, supra.Prior to 1940, the Supreme Court interpreted the Establishment Clause on only two occasions. In 1890, it rejected a claim that an Idaho law prohibiting polygamy constituted an impermissible establishment of religion.2 Davis v. Beason, 10 S. Ct. 299 (1890).The Court observed that the purpose of the Establishment Clause was to prohibit federal legislation
for the support of any religious tenets, or the modes of worship of any sect. The oppressive measures adopted, and the cruelties and punishments inflicted, by the governments of Europe for many ages, to compel parties to conform in their religious beliefs and modes of worship, to the views of the most numerous sect, and the folly of attempting in that way to control the mental operations of persons, and enforce an outward conformity to a prescribed standard, led to the adoption of the [first] amendment.3 Id. at 300.
In 1918, the Court summarily dismissed a claim that the exemption of ministers from military conscription constituted the establishment of a religion.4 Aver v. United States, 245 U.S. 366 (1918).
In 1940, the Court reaffirmed that the purpose of the Establishment Clause was to prevent an established church: “[I]t forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship.”5 Cantwell v. Connecticut, 310 U.S. 296 (1940).However, the Court added that the concept of “liberty” protected against state interference by the Fourteenth Amendment to the federal Constitution “embraces the liberties guaranteed by the First Amendment.” The significance of this holding cannot be overstated. The First Amendment’s liberties, including the free exercise and nonestablishment of religion, intended by the framers of that amendment as a limitation on the federal government and so interpreted for a century and a half,6 See, e.g., chapter 11, supra. See also Permoli v. Municipality No. 1 of New Orleans, 44 U.S. 589 (1845) (federal Constitution makes no provision for protecting religious liberties against state interference).were now also limitations upon state and local governments. Ironically, shortly after this unwarranted expansion of federal authority over the states, the Court remarked that “[j]udicial nullification of legislation cannot be justified by attributing to the framers of the Bill of Rights views for which there is no historic warrant.”7 Minersville School District v. Gobitis, 310 U.S. 586 (1940).
Despite this assurance, the Court largely abandoned the views of the framers of the establishment clause in its landmark Everson decision in 1947.8 Everson v. Board of Education, 330 U.S. 1 (1947).In Everson, a case involving a constitutional challenge to a state law authorizing bus transportation for parochial school students at public expense, the Court announced the following interpretation of the establishment clause:
Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect a wall of separation between church and state.9 Id. at 15-16.
Four dissenting justices similarly remarked that the First Amendment’s purpose
was not to strike merely at the official establishment of a single sect, creed or religion, outlawing only a formal relation such as had prevailed in England and some of the colonies. Necessarily, it was to uproot all such relationships. … It was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.10 Id. at 31-32.
By 1947, the Court not only had expanded the prohibitions of the Establishment Clause beyond anything contemplated by its framers, but also had imposed its interpretation upon state and local governments by means of the Fourteenth Amendment.11 Wallace v. Jaffree, 472 U.S. 38 (1985) (dissenting opinion of Justice Rehnquist). The dissenting opinion is an extensive historical analysis that seriously undermines the legitimacy of the Court’s Everson decision and many subsequent rulings based on that precedent.
The Court found in Jefferson’s “wall of separation” metaphor the philosophical basis for its interpretation of the Establishment Clause in Everson. However, as Justice Rehnquist demonstrated convincingly nearly 40 years later, Jefferson’s metaphor cannot properly be used as evidence of the meaning of the Establishment Clause.12 Id.
In the years following Everson, several longstanding accommodations of religious belief and practice fell victim to the new interpretation of the establishment clause. In 1948, the Court, relying on Everson and Jefferson’s “wall of separation” metaphor, struck down a local school board policy that permitted teachers employed by private religious groups to come weekly into public school buildings during regular school hours and impart religious instruction for 30 minutes to students whose parents requested it.13 People of State of Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203 (1948). Justice Reed, in dissent, noted that “the ‘wall of separation between church and state’ that Mr. Jefferson built at the university which he founded [the University of Virginia] did not exclude religious education from that school.” Id. at 247.
In 1962, the Court struck down a New York law requiring the following prayer to be said aloud in each public school classroom at the beginning of each school day: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country.”14 Engel v. Vitale, 370 U.S. 421 (1962). In a dissenting opinion, Justice Steward observed that “the Court’s task, in this as in all areas of constitutional adjudication, is not responsibly aided by the uncritical invocation of metaphors like the ‘wall of separation,’ a phrase nowhere to be found in the Constitution.” Id. at 445-46.The Court concluded that recitation of this prayer in public schools “breaches the wall of separation between church and state,” even though children who were opposed to the prayer were not compelled to participate and could be excused from class until the recitation was completed. Similarly, the Court in 1963 invalidated a Pennsylvania law requiring that “[a]t least ten verses from the Holy Bible shall be read, without comment, at the opening of each public school on each school day.”15 School District of Abington v. Schempp, 374 U.S. 203 (1963).The law permitted children to be excused from attending class during the reading upon the written request of a parent. The Court relied entirely on the expansive interpretation of the Establishment Clause enunciated in Everson in striking down the law.
In 1968, the Court struck down an Arkansas law making it unlawful for public school teachers to “teach the theory or doctrine that mankind ascended or descended from a lower order of animals.”16 Epperson v. Arkansas, 393 U.S. 97 (1968).The Court, relying on Everson, concluded that the First Amendment “does not permit the state to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma.”