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Debating Church-State Relations and Related Free-Speech Issues

Establishment Clause: Here’s How to Understand It!

The Constitution forbids Congress from creating an establishment of religion, but what is an establishment of religion? An important example from the past happened when Queen Elizabeth I of England (reigned 1558-1603) declared that Anglicanism, a form of Protestantism, was the official, government-supported church of England. Other European countries established official religions as well, such as the Russian Orthodox Church in Czarist Russia and the Catholic Church during the reign of the French kings.

Large numbers of religious minorities, including Puritans, Quakers, Baptists, Huguenots, and others from all over Europe, fled to America to escape religious persecution. However, once these religious refugees established their own colonies, they created official churches and persecuted those who did not belong to their religion. (See “Established Churches in Colonial Times” for more details.) By the end of the 1700s, however, the resolve against having any national religion was strong enough to make this prohibition the very first right in the Bill of Rights.

The First Amendment guarantee of religious freedom became a key element of the boldest political experiment the world has ever known. The turning point was the successful crusade by Thomas Jefferson and James Madison to get Virginia to adopt the Statute of Religious Liberty in 1786. That law prohibited a state tax in support of all Christian churches in Virginia, but it also declared: “That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief.”

The Virginia statute helped create a climate favoring religious freedom that encouraged Madison to include a similar provision in the Bill of Rights. Madison opposed every form and degree of official relation between religion and civil authority. For him, religion was a matter of individual conscience beyond the scope of civil power either to restrain or support. Of particular relevance to our time, Madison viewed state aid and taxation as no less obnoxious to the pursuit of religious freedom than other forms of state interference. Because of Madison, these sentiments found a secure place as the first freedoms written into the First Amendment.

Controversies over the appropriate relationship between government and religion persist today. Cases often come to the Supreme Court for resolution, and the justices are frequently in disagreement as to how to interpret the law. A major challenge in these religion cases is for the government to keep apart from religion yet defend religious freedom, which includes both the right to worship and the right not to. Thus, government and religion can never be fully isolated from each other in the United States-that is, the “wall of separation” between them, as Jefferson called it, is not without a few doors. This is one reason that the concept of religious freedom has made for a variety of interpretations and many heated debates in the public square and in the courts, especially in the past 60 years.

School prayer is one such controversy. Might public schools, which are agencies of government, require the recitation of prayers? In 1962, the Supreme Court said no. Might public schools allow “student-led, student-initiated” prayer to take place before school games? In 2000, the Supreme Court again said no, citing the ancillary message, to members of the audience who were not believers, that they are outsiders. According to the Court, the school district violated the Establishment Clause by allowing such prayer before football games even though the students had voted in a school election to include prayers before the game. As Justice Stevens said, the student election itself violates the Establishment Clause because it puts a religious question to a majority vote, and is likely to “encourage divisiveness along religious lines.” (For details, see Santa Fe: A School Prayer or a Free Speech Case?” and “Supreme Court Report: The Wavering Line.”)

At the same time, judges have become more tolerant of the use of school facilities for religious activities that are not part of the school’s curriculum. At one time, schools concerned with potential establishment clause violations tended to bar student groups from using school facilities. Early court decisions on this issue upheld the schools’ actions because allowing access would create an “impermissible appearance of official support of religion,” School District of Grand Rapids v. Ball , 473 U.S. 373 (1985). Courts also feared that allowing access would excessively “entangle” schools in religious affairs. As a result of these rulings, religious groups were placed at a distinct disadvantage compared to secular groups that were allowed to use the same facilities.

Congress passed the Equal Access Act (EAA) of 1984 to ensure that student religious groups would be on equal footing with secular groups, and it has withstood the scrutiny of the Supreme Court. The act requires public schools to let student religious groups use school facilities for meetings and activities when the school allows other noncurricular groups to do so. The U.S. Supreme Court upheld the EAA in Westside Community Schools v. Mergens , 496 U.S. 226 (1990).

In 2000 Mitchell v. Helms , 120 S.Ct. 2530, asked whether religious schools could participate in a government program that lends computers, software, and library books to secular schools. The Court voted yes in a 6-3 decision, upholding Chapter 2 of Elementary and Secondary Education Act of 1965, which authorizes the government to lend such equipment to students who are enrolled in religious as well as public schools. (More details are available in “Supreme Court Report: The Wavering Line.”)

One of the fiercest national debates today is between those seeking to offer parents and their children alternatives to traditional public schools through government provision of tuition vouchers, and those who consider this use of public educational funds counterproductive to the public school system’s basic purposes. Besides raising educational and public policy issues, the school voucher debate involves fundamental legal and constitutional issues.

Across the country, the battle lines are being drawn. School voucher opponents contend that the Establishment Clause is violated whenever religiously affiliated schools receive vouchers financed by public monies. Voucher proponents insist that there is no constitutional problem so long as the parent or student is the one who decides where the money will be used. They also deny that vouchers give parents a financial incentive to choose religious schools over private secular schools or public schools. Even though the legal arguments in different localities are essentially the same, the outcomes have varied sharply. For example, the Supreme Court of Wisconsin upheld Milwaukee’s voucher program in 1998 while the Supreme Court of Maine came to the opposite conclusion in 1999.

Another establishment issue that is just now heating up in the news involves President Bush's proposal to allow more religious ("faith-based") institutions and secular charities to receive government money to provide social services. Critics argue that such a program would blur church-state separation and threaten the independence of such organizations, which would be the subject of intensified government scrutiny if they receive public funds. Proponents point to the power of religion in changing troubled lives and to related types of funding already available to such organizations.

Activities related to understanding the Establishment Clause.

Student Central | Students in Action
Debating Church-State Relations and Related Free-Speech Issues
*Established Churches in Colonial Times* | Establishment Clause
Religious Freedom and Today's Religious Minorities
Santa Fe: A School Prayer or Free Speech Case? | Related Articles/Resources