Religion and the Law in America: A History
The issues: What was the framer's original understanding of the Establishment Clause?  Do we want "a wall of separation between church and state"?  Is such a wall even possible?  How should the Establishment Clause and Free Exercise Clause be reconciled?
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

Views on Religion & State Represented Among the Founding Generation

The framers were well aware that religion had been a source of conflict for centuries, from Roman mistreatment and prosecution of Jews and Christians, through the Crusades, thru endless conflict in Europe between Catholics and Protestants, to the prosecution of religious dissidents in the American colonies.  As James Madison put it, “Torrents of blood have been spilt in the old world, by vain attempts of the secular arm to extinguish Religious discord, by proscribing all difference in Religious opinions.” Madison thought he had a better idea.  He had his views, shaped by the Enlightenment mainly, but others involved in the process of enshrining protection for religious liberty in the Constitution had other ideas.

Four Main Views of Religion and State Issues in the 1700s

Religious views of the period can be divided roughly into four groups, who sometimes used the same words and phrases to mean different things, complicating the picture.  The four ways of thinking about religion were: Puritan views, Evangelical views, Enlightenment views, and Civic Republican views.

Puritan views

The New England Puritan tradition saw the church and state as two institutions serving the same Godly mission.  The church was to preach the word of God, administer the sacraments, and tend to the needy.  The state existed to enforce the law and promote virtue and proper religious behavior.  For Puritans, separation of church and state meant a ban on religious authorities serving on juries, holding political office, or endorsing candidates.  State officials, on the other hand, could not interfere with ecclesiastical conduct or perform any functions of the clergy. Separation for Puritans did not include bans on material aid to churches.  Also allowed were Sabbath day laws, laws requiring church attendance, and basic adherence to the tenets of Puritanism.

Evangelical views

Evangelical views emerged during the Great Awakening of 1720 to 1780.  Like the Puritans, the Evangelicals supported the separation of church and state, but went beyond the Puritans in their desire to protect the liberty of conscience for individuals and freedom for all religious groups to exercise their beliefs as they desired.  They believed that a plurality of religions should be allowed to co-exist and that it was up to God to decide which would flourish and which would not.  Evangelicals, unlike Puritans, did not support material aid from the state to churches and opposed other laws restricting freedom of conscience that were tolerated—and even advocated—in Puritan New England.

Enlightenment views

Enlightenment thinkers such as John Locke and David Hume developed political theories that generally supported the Evangelical views on religious separation and free exercise of religion.  Framers such as Thomas Jefferson and Benjamin Franklin were American spokesmen for Enlightenment views.  The main focus of Enlightenment thinkers was less on theology and more about sparing the state from religious intrusion into its sphere of concern.  They generally believed in strict separation of church and state and argued that religious grounds and arguments should not be the basis for civil laws.  James Madison put the argument this way: “A perfect separation between ecclesiastical and civil matters” is the best approach because “religion and government will both exist in greater purity, the less they are mixed together.”

Civic Republican views

Civic Republicans was a group that included framers such as George Washington, John Adams, Oliver Ellsworth, and James Wilson.  Their views were in some ways more allied with the Puritan tradition than with Evangelical views.  Although they shared the view with Evangelicals and Enlightenment thinkers that religious liberty ought to be protected, and rejected the idea of a theocracy, but they did believe, like the Puritans, that the state should try to imbue its citizens with a proper ethics that was largely consistent with Puritan (and more generally, Protestant notions) of what good ethics should be. George Washington expressed the view this way: “Religion and Morality are the essential pillars of civil society.” Government ought to, in the view of Civic Republicans, promote honesty, diligence, patriotism, love of God, and public spiritedness.  The Civic Republicans saw no problem with public prayers by state officials, the appointment of chaplains, or enforcement of a religiously based morality through law.

The First Congress Debates the Religion Clauses in the Proposed Bill of Rights, 1789

On August 15, Madison explains to House members his interpretation of the words he has drafted protecting religious liberty.  The words mean, he said, "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."  He said these protections will address the concerns expressed by state legislatures in their ratifying sessions that the Congress might have broad powers "to establish a religion and infringe the rights of conscience."
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Other Religion Clause Topics:

Prayer in the Public Schools

Financial Aid to Religious Schools

Theocracy Issues: Looking for Secular Purposes

Religious Symbols in Public Places

Student-Initiated Religious Speech

Laws Burdening Religiously-Motivated Conduct


Marsh v Chambers (US, 1983)

(In Marsh v Chambers, the Court uses an originalist analysis to answer the question of whether prayers to open legislative sessions violates the Establishment Clause.  The Court looks to the remarks of framers and to the practices of the First Congress.)

Ernie Chambers, the legislator who challenges prayer in the Nebraska Legislature

1.   Note that both the majority and the dissent employ originalist arguments in Marsh.  Which side has the stronger case in your opinion?
2..  If the Court in Marsh applied the Lemon test, would the practice of beginning legislative days with prayers be constitutional?  Do prayers serve the secular purpose of solemnizing legislators and making them think about ethical and public policy considerations that ought to guide their deliberations?

Reynolds v. United States (US, 1878)

The Supreme Court's first encounter with a Free Exercise Clause claim came when a Mormon polygamist in the Utah Territory challenged his conviction under a federal anti-polygamy law in Reynolds v U. S. (1878).  The Supreme Court rejected the appellant's claim that his religious beliefs necessitated, and therefore excused, his violation of federal law.  The Court read the Free Exercise Clause as protecting religious beliefs, not religious practices that run counter to neutrally enforced criminal laws.  Given that the Free Speech Clause has been read to fully protect beliefs, if the Court's narrow interpretation had stood, the Free Exercise Clause would mean very little.  But, as we'll find out, the Court's views on the meaning of the Free Exercise Clause changed in the twentieth and twenty-first centuries.

The History Behind the Religion Clauses of the First Amendment

Constitution Annotated (

Madison’s original proposal for a bill of rights provision concerning religion read: The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretence, infringed. The language was altered in the House to read: Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.[1] In the Senate, the section adopted read: Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion. . . .[2] It was in the conference committee of the two bodies, chaired by Madison, that the present language was written with its somewhat more indefinite respecting phraseology.[3] Debate in Congress lends little assistance in interpreting the religion clauses; Madison’s position, as well as that of Jefferson, who influenced him, is fairly clear,[4] but the intent, insofar as there was one, of the others in Congress who voted for the language and those in the states who voted to ratify is subject to speculation.

Scholarly Commentary

The explication of the religion clauses by scholars in the nineteenth century gave a restrained sense of their meaning. Story, who thought that the right of a society or government to interfere in matters of religion will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice, looked upon the prohibition simply as an exclusion from the Federal Government of all power to act upon the subject. The situation . . . of the different states equally proclaimed the policy, as well as the necessity of such an exclusion. In some of the states, Episcopalians constituted the predominant sect; in others presbyterians; in others, congregationalists; in others, quakers; and in others again, there was a close numerical rivalry among contending sects. It was impossible, that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendancy, if the national government were left free to create a religious establishment. The only security was in extirpating the power. But this alone would have been an imperfect security, if it had not been followed up by a declaration of the right of the free exercise of religion, and a prohibition (as we have seen) of all religious tests. Thus, the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions; and the Catholic and the Protestant, the Calvinist and the Armenian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship.

Probably, Story also wrote, at the time of the adoption of the constitution and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation. The object, then, of the religion clauses in this view was not to prevent general governmental encouragement of religion, of Christianity, but to prevent religious persecution and to prevent a national establishment.

Not until the Supreme Court held the religion clauses applicable to the states in the 1940s did it have much opportunity to interpret them. But it quickly gave them a broad construction. In Everson v. Board of Education, the Court, without dissent on this point, declared that the Establishment Clause forbids not only practices that aid one religion or prefer one religion over another, but also those that aid all religions. With respect to the Free Exercise Clause, it asserted in Wisconsin v. Yoder that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion. . . .


The committee appointed to consider Madison’s proposals, and on which Madison served, with Vining as chairman, had rewritten the religion section to read: No religion shall be established by law, nor shall the equal rights of conscience be infringed. After some debate during which Madison suggested that the word national might be inserted before the word religion as point[ing] the amendment directly to the object it was intended to prevent, the House adopted a substitute reading: Congress shall make no laws touching religion, or infringing the rights of consciencr, [t]here can be little doubt that this was written by Madison. I. Brant, James Madison: Father of the Constitution 1787–1800 at 271 (1950).

It was at this point that the religion clauses were joined with the freedom of expression clauses.

The Senate concurred the same day.

4  During House debate, Madison told his fellow Members that 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. That his conception of establishment was quite broad is revealed in his veto as President in 1811 of a bill which in granting land reserved a parcel for a Baptist Church in Salem, Mississippi; the action, explained President Madison, comprises a principle and precedent for the appropriation of funds of the United States for the use and support of religious societies, contrary to the article of the Constitution which declares that ‘Congress shall make no law respecting a religious establishment.’ Madison’s views were no doubt influenced by the fight in the Virginia legislature in 1784-1785 in which he successfully led the opposition to a tax to support teachers of religion in Virginia and in the course of which he drafted his Memorial and Remonstrance against Religious Assessments setting forth his thoughts. Acting on the momentum of this effort, Madison secured passage of Jefferson’s Bill for Religious Liberty. The theme of the writings of both was that it was wrong to offer public support of any religion in particular or of religion in general.

Famous American Trials Raising Issues of Religion

Anne Hutchinson, convicted for her religious views in 1637

The Trial of Anne Hutchinson (1637)

Mary Dyer Trials (1659-60)

Salem Witchcraft Trials (1692)

Carthage Conspiracy (Joseph Smith Murder) Trial (1845)

Mountain Meadows Massacre Trials (1875-76)

Scopes "Monkey" Trial (1925)

1.  Social critic Charles Krauthammer suggests that American Civil Religion consists of three major tenets: (1) belief in a Just Providence (whether "God" or not), (2) the sanctity of the social contract (our rights and obligations as citizens), and (3) tolerance of dissent.  In his view, any practice that promotes any of these three tenets (including, for example, school time for silent meditation) should be constitutional.  Do you agree?
2.  If it were to be satisfactorily demonstrated that a majority of those voting to propose and ratify the First Amendment had a narrow view of the application of the Establishment Clause, should the Court reverse course and overrule many of its established precedents in this area?

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