>>Dr. Justin Wert: The 1st Amendment's religion clause seems to pull us in two different directions:
"Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof." These two clauses seem to protect two different rights -- not
one general right. As we'll see, the application or enforcement of one of those rights can
often implicate the other. Guaranteeing one's free exercise rights, for example, can sometimes
put the government in a position where it seems that its promoting one religion over
another.
The United States has a unique history with respect to religious freedom. As many of you
already know, many of the first Americans to arrive at our shores did so to escape religious
persecution elsewhere and to insure religious freedom for themselves and their families.
However, some of these same groups also immediately began to prosecute and punish those who did
not conform to their particular religious beliefs.
In fact, many colonies -- and then states -- had official religion and required universal
participation, even sometimes tying that participating to voting requirements. To be sure, there
were exceptions, like Roger Williams, who fled to Rhode Island, that do represent a
strong dissenting tradition in American History.
These differing histories mean that even to this day we still disagree about the origins
and intentions of those who wrote the clause. As we'll see, these histories, often selected
by Justices and others in a way that supports their own preferred outcomes in these cases,
are an important development of Establishment jurisprudence on the Court.
We should also note that, next to the Free Speech clause, the Establishment clause is
one of the earliest clauses to be incorporated or applied against the states. This adds another
layer on top of Establishment jurisprudence. Not only is it difficult to give exact meaning
to what Establishment means, but the added dimension of federalism further complicates
the matter. Maybe establishment should be applied or incorporated against the states,
but maybe states should allow for some variation in their ability to deal with religion.
As we study these cases, it's important to keep in mind that one of our goals in this
course is not only to understand these ideas as constitutional and legal ones, but also
as historical concepts. This means that we need to pay attention to the different and
changing ways that the Court will interpret the clauses we study. And establishment is
no different.
As you read, you'll see three distinct periods of development or change that characterize
the overall decisions of the court in establishment cases.
After the clause is incorporated against the states in 1940. We see that during the 1940's
and 50's the court adopts what is called "strict separation." This means that states will not
violate the Establishment clause if their policies are neutral toward any one religion
and if these policies are for secular purposes. However, there can be some indirect benefits
that religion can enjoy. We'll see this in the Everson case involving state support for
school busing for parochial school students in New Jersey. It is during this period, moreover,
that the Court announces that it will use Thomas Jefferson's "wall of separation" metaphor
as a guiding historical justification for its establishment clause cases.
But in the 1960's the Warren Court will adopt an even more restrictive stance. Here, states
will not run afoul of the establishment clause if their policies are neutral and secular,
but there can be NO direct or indirect benefits flowing to religion. This will be the high
watermark for what some call the Court's disestablishment jurisprudence. In cases like Engel v. Vitale,
for example, prayer in schools is deemed to violate the establishment clause. Cases like
this, and especially the Court's approach to them, have been controversial ever since.
Finally, from the 1970's to today, the Court has adopted what we call a more accomodationist
approach. There still needs to be a secular purpose behind state policies and regulations,
but aid and benefits to religion are permitted in some cases.
Since the 1970's, moreover, the Court has developed "tests" to determine the conditions
under which state policies and regulations violate the establishment clause. The tests
are designed by the Court to help them decide in a seemingly neutral way such an important
issue such as establishment. We'll see the Court move from a secular-purpose/secular
effects test to a test called the "Lemon Test," from a case in the early 1970's that added
another requirement beyond secular purpose and secular effect to try and accommodate
religion which was that the policy in question cannot foster an "excessive" entanglement
between government and religion. Over the last few decades, though, some on the Court
have utilized the Lemon test, but others have not. Some have even added more tests, like
whether a prayer at a high school graduation might "psychologically coerce" students, thus
violating the establishment clause.
So as you read, think about, and critique the establishment clause cases, think about
the following questions?
Which approach -- if any -- that the Court has taken makes the most sense to you?
Should the government -- and the Court -- even be involved in establishment clause issues
beyond simply refusing to support one religion or church over another?
Which test, if any, developed by the Court seems to best understand and enforce the establishment
clause? Could you develop a neutral test for determining when state policies, laws, and
regulations run afoul of the establishment clause?
And finally, does government involvement with religion -- no matter how small and seemingly
innocuous -- have the potential to hurt both government AND religion?