Tuesday, May 19, 2015

The Establishment Clause


The Establishment Clause

What Does the First Amendment's Establishment Clause Really Mean?

An American penny, worth one cent. All U.S. currency bears the motto "IN GOD WE TRUST.". Photo: Copyright (c) 2006 Trish Parisy. Licensed under Creative Commons.

Tom Head
Civil Liberties Expert

The First Amendment to the U.S. Constitution begins with the phrase "Congress shall make no law respecting an establishment of religion..." This phrase is referred to as the establishment clause. Although Europe had been torn apart by religious conflict for almost the entirety of recorded history, the establishment clause was most likely motivated by hostility towards, and suspicion of, the Church of England.

Until 1784, there was no Anglican or Episcopal bishop in the United States. This meant that any priest belonging to the Anglican tradition--which was the official state religion in the Virginia, Georgia, and Carolina colonies--had been ordained in London and served at the pleasure of English bishops loyal to the Crown. By the time the American Revolution came about, Anglican priests were understandably held in high suspicion and the framers of the Constitution were reticent to create anything resembling an official Church of England in the United States. This popular sentiment made it easy to ratify the establishment clause. But what did individual framers believe? There was considerable variation. Some framers, such as Thomas Jefferson and revolutionary pamphleteer Thomas Paine, were rational deists who felt that the absolute freedom of conscience would invariably be threatened by any government endorsement of religion. In an 1802 letter to the Danbury Baptist Association, then-president Jefferson wrote:

Believing with you that religion is a matter which lies solely between Man and his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church and State.

The phrase "wall of separation between Church and State" continues to define the popular meaning of the establishment clause. From a judiciary standpoint, however, there are actually three popular intepretations of the clause's meaning:
  • separationism, which holds that the establishment clause prevents any government endorsement or support of religious establishments. Examples of those holding this view include House Speaker Nancy Pelosi as well as Justice Stephen Breyer, Justice Ruth Bader Ginsburg, and Justice David Souter of the U.S. Supreme Court.
  • accommodationism, which holds that the government may support or endorse religious establishments as long as it treats all religions equally and does not show preferential treatment. This view is held by President George W. Bush and former President Bill Clinton, as well as Justice Anthony Kennedy and Justice Antonin Scalia of the U.S. Supreme Court.
  • preferentialism or Christian dominionism, which holds that the establishment clause only prevents a literal Church of America from being created and does not prevent the government from explicitly endorsing Christianity. This uncommon view is held by the Rev. Pat Robertson and former Alabama Supreme Court Justice Roy Moore, and there is evidence that Justice Clarence Thomas of the U.S. Supreme Court may believe that the preferentialist interpretation of the establishment clause applies to state law. This is due more to his narrow interpretation of the incorporation doctrine than to his interpretation of the establishment clause itself, which is probably accommodationist.

During most of the 20th century, the Supreme Court held primarily to a separationist interpretation of the establishment clause. Recent Supreme Court decisions indicate that there may be a gradual shift to a mild accommodationist position in the coming years with respect to private school vouchers, federal funding for faith-based charities, and symbolic or historical affirmations of religious heritage (such as "under God" in the Pledge of Allegiance, or "in God we trust" on currency).


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