Introduction to the Establishment Clause
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.

Introduction

Two clauses of the First Amendment concern the relationship of government to religion: the Establishment Clause and the Free Exercise Clause.  Although the clauses were intended by the framers to serve common values, there is some tension between the two.  For example, some people might suggest that providing a military chaplain for troops stationed overseas violates the Establishment Clause, while others might suggest that failing to provide a chaplain violates the Free Exercise Clause rights of the same troops.  We will, however, postpone discussion of how the two clauses ought to be reconciled, and begin with an examination of the meaning of the Establishment Clause.

At an absolute minimum, the Establishment Clause was intended to prohibit the federal government from declaring and financially supporting a national religion, such as existed in many other countries at the time of the nation's founding.  It is far less clear whether the Establishment Clause was also intended to prevent the federal government from supporting Christianity in general.  Proponents of a narrow interpretation of the clause point out that the same First Congress that proposed the Bill of Rights also opened its legislative day with prayer and voted to apportion federal dollars to establish Christian missions in the Indian lands.  On the other hand, persons seeing a far broader meaning in the clause point to writings by Thomas Jefferson and James Madison suggesting the need to establish "a wall of separation" between church and state.

Supreme Court interpretation of the Establishment Clause does not begin until 1947 in Everson v Board of Education.  Voting 5 to 4, the Court upheld a state law that reimbursed parents for the cost of busing their children to parochial schools.  (It was clear from the various opinions in Everson that if the state had reimbursed the parochial schools for the cost of providing the transportation, that it would have been found to violate the Establishment Clause.)  Although in his majority opinion Justice Black wrote of the "wall of separation" that the Constitution maintains between church and state, Black viewed the aid in question of serving the state's secular interest in getting kids "safely and expeditiously" to schools.  The case is noteworthy for its extensive discussion of the purposes of the Establishment Clause, and for the fact that all nine justices agree that the clause was intended to do far more than merely prohibit the establishment of a state religion.


Vashti McCollum

Subsequent decisions make clear that a majority of justices on the Supreme Court view "the wall" separating church and state more as a shifting, porous barrier. Small factual differences in cases often produce different outcomes.  For example, in 1948, the Court ruled 8 -1 in McCollum v Board of Education that the practice of inviting religious instructors into public schools to give optional religious instruction violates the Establishment Clause.  Justice Black, writing for the Court, said that the practice was "unquestionably" a violation of the Establishment Clause, which created "a high and impregnable wall" between church and state. The McCollum decision was the first victory ever for a plaintiff challenging state religious practices under the Establishment Clause. McCollum was distinguished in the 1952 case of Zorach v Clauson, raising the question of the constitutionality of off-premises religious instruction.  In Zorach, the Court upheld the practice of giving public school students "release time" so that they could attend religious programs in churches in synagogues.  Writing for the 6-3 Court majority in Zorach, Justice Douglas said the Constitution does not require "callous indifference to religion."  In dissent, Justice Jackson argued that the state was using the public school as "a temporary jail" for students who chose not to attend the religion classes.

The question of school-sponsored prayer has, of course, proven highly controversial.  In the landmark case of Engel v Vitale in 1962, the Court ruled that New York's practice of beginning school days with a prayer drafted by school officials violated the Establishment Clause.  This is the case, the Court said, whether or not students are given the option of not participating in the prayer.  Following Engel, the Court has faced a whole series of prayer-related cases in the public school context raising issues such a prayer in special circumstances (e.g., graduation ceremonies), periods for silent meditation or silent prayer, and student-initiated prayer.  In general, the Court has demonstrated a willingness to strike down any practices that might be likely to be perceived either as coercive or as a state endorsement of religion.


Happy members of the group that challenged New York's
 daily prayer in Engel v Vitale.


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

Cases

Everson v Board of Education (1947)
McCollum v Board of Education (1948)
Engel v Vitale (1962)


Thomas Jefferson, who argued for "a wall of separation between church and state."

 Is it a prayer?
The following verse was read each day to a Florida kindergarten class.  The school board said the purpose of the verse was to calm kids down and create a sense of appreciation for the world.  Is the verse a prayer?  How are students likely to interpret "you"? Could 
"you" be Mother Nature or a Giant Slug?
We thank you for the flowers so sweet;
We thank you for the food we eat; 
We thank you for the birds that sing;
We thank you for everything.

 What is a Religion?
If it is unconstitutional to establish a religion, then it might sometimes be important to determine whether something is a "religion" for Establishment Clause purposes.  For example, Malnak v Yogi (1979, 3rd Cir.) considered whether SCI/TM (scientific creative intelligence/transcendental meditation), offered as an elective course in New Jersey public schools, was a religion.  If so, offering such a course--even on an elective basis--might be unconstitutional.  Those challenging the course produced evidence that instructors told students that "creative intelligence is the basis of all growth" and that getting in touch with this intelligence through mantras is the way to "oneness with the underlying reality of the universe."  They also pointed out that students received personal mantras in puja ceremonies that include chanting and ritual.  On the other hand, supporters of the course showed that SCI/TM put forward no absolute moral code, had no organized clergy or observed holidays, and had no ceremonies for passages such as marriage and funerals.  Is SCI/TM a religion?  Judge Adams of the Third Circuit applied these three criteria before  answering the question in the affirmative:

1. A religion deals with issues of ultimate concern; with what makes life worth living; with basic attitudes toward fundamental problems of human existence.
2. A religion presents a comprehensive set of ideas--usually as "truth," not just theory.
3.  A religion generally has surface signs (such as clergy, observed holidays, and ritual) that can be analogized to well-recognized religions.

In 2001, a federal appeals court ruled against Fundamentalist parents who had contended that a public school had established the religion of "Earth worship," citing such practices as having the students give "gifts" to the planet during an Earth Day program.  Does this sound like a religion to you?

Questions

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?
3.  What do you think about the suggestion made by Professor Laurence Tribe and others that "religion" should be given two interpretations--a narrow one for Establishment Clause purposes and a broad one for Free Exercise Clause purposes?

Two Justice's Views
To hold that a state cannot, consistently with the First and Fourteenth Amendments, utilize its public school system to aid any or all religious faiths or sects in the dissemination of their doctrines and ideals does not...manifest a governmental hostility to religion or religious teachings. A manifestation of such hostility would be at war with our national tradition as embodied in the First Amendment's guaranty of the free exercise of religion. For the First Amendment rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere. Or, as we said in the Everson case, the First Amendment has erected a wall between Church and State which must be kept high and impregnable. (Justice Black in McCollum v Board of Education)

We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. (Justice Douglas in Zorach v Clauson)

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