Establishment

Clause

Danielle

Hernandez
Danielle Hernandez

Ms. Sullivan

College Law

May 17, 2011

First Amendment: Establishment Clause

INTRODUCTION

The United States Constitution is a living, breathing, document whose various parts work

together to support the nation’s government and people. There are, however, certain

Amendments, articles, and clauses which have been argued to be more important than others.

The First Amendment is one of those. In it are the country’s freedoms to speech, expression,

press, petition, and assembly as well as the rights to freely exercise a religion and be free from

the establishment of a national religion by the government. Given its deep- rooted genesis in our

nation’s founding, the Establishment Clause of the First Amendment seems to be a clause that

should be protected above many others.

BACKGROUND

In the early 17th century, America’s Atlantic Coast was beginning to be populated by

British colonists. The majority of these settlers came to this country seeking asylum from the

religious persecution they were subjected to in Europe. Upon the establishment of the national

Anglican faith by King Henry VIII, two splinter faiths appeared: the Puritans and the Separatists.

During what was known as the Great Migration in 1630, Puritans came to the Massachusetts Bay
Colony to seek freedom from religious oppression. Freedom to practice religion and freedom

from a national establishment of religion is a main foundation of the United States.

However, you can see the shades of Constitution argument over the Establishment Clause

as early as the 1630’s. Although these groups sought religious tolerance for themselves, they did

not believe in religious tolerance for others (hence the notorious witch hunts). Regardless, early

America was still diverse in religious background. Aside from Puritans and Separatists, there

were Quakers, German Lutherans, Scotch-Irish Presbyterians, Swiss Mennonites, Jews, and

others. Unlike the Puritans, a majority of this population took religious tolerance seriously.

(Cayton 51-54)

Even today, the President is sworn into office with his hand place on top of a Bible.

Witnesses testifying in court do the same and usually declare, “So help me God.” Also, since the

1950’s, the first Thursday in May of each year has been a so-called National Day of Prayer as

declared by the President. Our currency is, likewise, laden with God-bearing phrases. (Levy xiv)

With this considered, it is both hard to understand and also completely understandable why so

many issues regarding religious establishment are brought up in this nation’s courts.

DISCUSSION

The nature and legitimacy of the Establishment Clause has been disputed throughout our

country’s history and especially in the past century. Often, these disputes find their way to the

Supreme Court.

Prior to 1947, the United States Constitution contained a statement in the First

Amendment which prohibited Congress from making laws “respecting an establishment of

religion or prohibiting the free exercise thereof.” It was upheld at the national level with no

problems, yet, on a state level, there were incidents of the granting of legislative or other legal

privileges to those of certain religious denominations. In New Jersey, at that time, the state was

reimbursing the parent of school children in both public and parochial schools who used public

transportation to get to and from school. One New Jersey tax payer, Arch Everson, claimed that

this violated the Establishment Clause on a state level after application of the due process clause.

The State court agreed yet the New Jersey Court of Errors and Appeals (the highest in the state)

reversed it. Finally, this led Everson to appeal to the Supreme Court. Some of the Court saw it as

an entanglement of state and church but they looked back at the definition of establishment.

(Everson v. Board of Education)

The definition of establishment is as follows:

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 to
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 entertain-
[330 U.S. 1, 16] ing or professing religious beliefs or disbeliefs, for
church attendance or non-attendance. 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 from 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. (Everson v. Board of Education)

They ultimately ruled that, since the benefit was being applied to all students regardless

of faith, the state bill was permissible. The “high and impregnable wall” between church and

state had not been breached by New Jersey. This ruling was important to the history of the
Establishment Clause because it was truly the first time it reached out to the state level. (Everson

v. Board of Education)

The 1961 case of Torcaso v. Watkins is another example of the Establishment Clause

being upheld. At the time of this case, Article 37 of the Maryland Declaration of Rights

necessitated that an individual invoke their belief in God in order to hold “any office of profit or

trust.” Roy Torcaso was offered such a position and, subsequently, requested to recite his belief

in God. As an atheist, Torcaso refused and was prepared to take legal action. His claim was that

it was an infringement of the Establishment Clause in the First Amendment and an infringement

of his Fourteenth Amendment rights, as well. Torcaso took his complaint to the Maryland Court

of Appeals but found that the state legislation was upheld as just. It was believed that, due to the

way the Article was stated, that it was “self-executing without need for implementing

legislation.” Article 37 stated: “[N]o religious test ought ever to be required as a qualification for

any office of profit or trust in this State, other than a declaration of belief in the existence of

God… .” (Torcaso v. Watkins)

Roy Torcaso continued to appeal to the United States Supreme Court on April 24, 1961.

The Court, upon examination of the past case of Everson v. Board of Education, noticed a

similarity in infringement of the Establishment Clause. Justice Black also added that, under

Article VI of the Constitution, it is stated that “no religious Test shall ever be required as a

Qualification to any Office or public Trust under the United States.”

In the end, the Court held that the Maryland test for public office could not be held

against Torcaso because it was in violation of his First and Fourteenth Amendment rights.

(Torcaso v. Watkins)
 In 2004, there was yet again another complaint of an attack on the Establishment Clause.

Thomas Van Orden of Austin, Texas, felt that the public display of the Ten Commandments at

the Texas State Capitol was unconstitutionally entangling Judeo-Christian faith with the state

government. Appealing to the Court of Appeals for the Fifth Circuit, Van Orden was told that the

display of this monument was constitutional because it held both a religious and secular

meaning. In October of 2004, Van Orden brought his case before the Supreme Court who heard

his trial at the same time as McCreary County v. ACLU of Kentucky1. The monument had been a

gift from the Fraternal Order of the Eagles, a civic organization, and bore the text of the Ten

Commandments along with stars of David and the Greek letters Chi and Ro (for Christ). The

Court had also decided that the Lemon Test would not work in such a case. (Van Orden v. Perry)

Justice Breyer’s concurrence, in particular, gave an interesting analysis of the case:

Justice Breyer concluded that this is a difficult borderline

case where none of the Court's various tests for evaluating
Establishment Clause questions can substitute for the exercise of
legal judgment. ... That judgment is not a personal judgment. ... No
exact formula can dictate a resolution to fact-intensive cases such
as this. Despite the Commandments' religious message, an inquiry
into the context in which the text of the Commandments is used
demonstrates that the Commandments also convey a secular moral
message about proper standards of social conduct and a message
about the historic relation between those standards and the law.
(Van Orden v. Perry)

To him, it seemed that, when all of the factual information was collected, the monument

did, in fact, serve a secular purpose. He focused on the donator, their purpose of the donation (to

counter juvenile delinquency), and the park where it was located (which also consisted of 17

other monuments and 21 historical markers). Regardless, the Court held that the judgment was

affirmed and decided that the display was unconstitutional. (Van Orden v. Perry)
1
McCreary County v. ACLU of Kentucky was a 2005 Supreme Court case involving the display of the
Ten Commandments in two county courthouses. The display was ruled unconstitutional by a 5 to 4
decision.
 This variety of cases over the last century shows that the Establishment Clause was and

remains a heavily debated and confusing (yet nonetheless important) part of the Constitution.

Professor Stanley Fish, writing for the New York Times in 2007, addressed the issue. He states

that those who oppose the strict upholding of the Establishment Clause use the claim that

religions should not be “singled out.” He answers this by charging that “the special status of

religion is the reason for the Establishment Clause” when this status turns out to be either

negative or positive. He backed up Justice Jackson’s dissent in Everson v. Board of Education

which asserted that “it was intended not only to keep the state’s hand out of religion, but to keep

religion’s hands off the state.” (Fish)

Often, cases are not as clear cut or as obvious as those stated above. Cases such as Cutter

v. Wilkinson address the topic of religion but are wrapped up in other topics, too. This case was

held in relation to the Religious Land Use and Institutionalized Persons Act (RLUIPA).

RLUIPA, the successor to the unconstitutional Religious Freedom Restoration Act (RFRA), does

deal with an issue of land pertaining to a particular religion but it also addresses

“institutionalized people” and this makes it a great deal harder to understand from an

Establishment Clause perspective. Prisoners of various religious backgrounds including Wiccan,

Asatru, and Satanist claimed to be treated worse than other “mainstream” religious groups. The

following aspect of the Act was upheld: (Hamilton)

RLUIPA prevents prisons from applying their generally applicable,

neutral regulations when prisoners' religious liberty is affected,
unless they satisfy the strictest scrutiny known to constitutional
law. Under this test, to apply a regulation, the government must
prove it has a compelling interest and that it enacted the least
restrictive means of achieving that interest. (Hamilton)
 To take on a care pertaining to the Establishment Clause is to be prepared for an immense

amount of confusion, dissent, and debate. It is always heated, controversial, often blurred, and

sometimes, on the parts of the government and the public alike, biased.

CONCLUSION

Though it is arguably one of the most important aspects of the United States Constitution,

the Establishment Clause still remains a paradox. The governmental sphere must remain

impartial towards religion yet, at the same time, must advocate for and protect it. Citizens must

be able to freely practice their religions and have the government’s support to do so; however,

these citizens should expect nothing from the government, in actuality. It would also be an

extremely imprudent to remark that government support of a variety of religious activities is

unconstitutional. Obviously, support of an activity, action, or program, of a particular religion at

some instance is not blatantly suggesting that the government is trying to make that religion the

sole religion of the nation.

The Establishment Clause paradox expands into an ambiguity of rights and clauses. Court

cases such as Rosenburger v. Rector, for example, lie somewhere in between Establishment

Clause territory and the domain of freedom of speech and press. Rosenburger v. Rector was a

1995 Supreme Court case dealing with the refusal by the University of Virginia to authorize the

allocation of funds to be put towards the printing of a student run evangelical newspaper entitled

Wide Awake. In this particular case, the Court decided that it leaned towards Establishment

Clause territory due to the fact that it was considered a call to religion rather than speech. (Fish)

It simply is very difficult to try to ascertain the importance of something that is only a part of a

whole. In defending the Establishment Clause above all others, you are, in effect, not defending
it at all. The Establishment Clause almost always works very closely along side various other

aspects of the First Amendment. It is effectual when paired with the free exercise clause,

freedom of expression, freedom of speech, freedom and press, and others.

Perhaps the strongest defense of this clause lies not with the successful court cases it has

been involved with, but the history and time honored tradition of it. Naturally, through the

observation of history, politics, and other social studies, a situation in which a government (or

similar figure) imposes a religious set of values on a people never ends well. Examples can be

found anywhere from the founding of the Anglican Church to the use of Shar’iah in modern-day

Middle Eastern nations. Creating any sort of living condition to be a national norm would

patently contradict everything that the United States stands for as a free and diverse country.

In Everson v. Board of Education you observed the government acts as a protector of

those associated with religions and disallows a discrimination based upon that factor. In Van

Orden v. Perry you observed the government protecting those not associated with religions from

an establishment of a religious article that made those not members of the Judeo-Christian faith

feel excluded. A fair balance between both of these sides is found to make our First Amendment

rights what they are today.

WORKS CITED

Cayton, Andrew, Elisabeth Perry, Linda Reed, Allan Winkler, Prentice-Hall , and inc . America:

Pathways to the Present. Upper Saddle River, NJ: Pearson Prentice Hall, 2000. pp 51-54.

Print.

Everson v. Board of Education of Ewing TP. No 52. Supreme Court of the US. 10 February

1947. Web. <http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=

us&vol=330&invol=1>

Fish , Stanley. "Is the Establishment Clause Unconstitutional?." The New York Times. 11 March

2007, Web. <http://opinionator.blogs.nytimes.com/2007/03/11/is-the-establishment-

clause-unconstitutional/>

Hamilton, Marci. "Two Important Establishment Clause Issues The Supreme Court Will Decide

This Term, Relating to The Ten Commandments and a Key Federal Statute." FindLaw.

21 October 2004. Web. <http://writ.news.findlaw.com/hamilton/20041021.html>.

Levy, Leonard W. The Establishment Clause: Religion and the First Amendment. 2nd ed., rev.

Cedar Hill, NC: Macmillan Publishing Company, 1994. p xiv. Print.

Torcaso v. Watkins. No. 373. Supreme Court of the US. 19 June 1961. Web.

<http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=volpage&court=us&vol=367&

page=495>

Van Orden v. Perry. No. 03-1500. Supreme Court of the US. 27 June 2005. Web.

<http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=03-1500>