Kevin T. Baine
Follow this and additional works at: http://scholarship.law.stjohns.edu/tcl Part of the Education Law Commons, and the Litigation Commons Recommended Citation
HISTORY OF THE ESTABLISHMENT CLAUSE
The Establishment Clause was originally adopted, not to banish
religion from public life, but to simply prevent Congress from interfering
with the ability of the states to choose whether or not to establish their
own religions. 2 In the words of Justice Story, under the Establishment
Clause "the whole power over the subject of religion [was] left exclusively
to the State governments, to be acted upon according to their own sense
1 U.S. CONST. amend I. Known as the Establishment Clause, this amendment provides, in
pertinent part, that "Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof." Id.
2 See Raul M. Rodriguez, God Is Dead:Killed By Fifty Years of Establishment Clause
Jurisprudence,23 ST. MARY's L.J. 1155, 1161-70 (1992) (asserting that history surrounding
adoption of Clause is contrary to Supreme Court jurisprudence).
ofjustice. . . ." Accordingly, the Establishment Clause was not designed
to take the government out of the business of religion; rather it was
designed to simply remove the federal government from the business of
religion and to leave it to the states.
The adoption of the Establishment Clause was necessary because
the states were far from unanimous on the subject of religion. For
example, some states like Virginia opted for a total disestablishment of
religion. Others, like Massachusetts, chose to establish their own religion.
In fact, Massachusetts retained its established religion well into the
nineteenth century.4 Accordingly all states, regardless of whether they
had established or had disestablished a religion, were suspicious that
Congress would try to interfere with their right to religious
self-determination. The phrasing of the Establishment Clause reflects the states'
double concern. The Clause does not state that Congress could not enact
laws that establish religion since that might have implied that Congress
was free to require disestablishment. Instead, what the Clause says is
that Congress cannot enact laws respecting an establishment of religion.
Thus, it forbids Congress from passing laws that either establish a
religion or prohibit the states from establishing their own religions.
The Establishment Clause was enacted to prevent federal
interference with the religious affairs of the states; this is the only evil against
which it is directed. The Clause was not designed to prohibit all
cooperation between church and state. For instance, at the time of the Clause's
adoption, religion was seen as a benefit to be fostered by the state, not as
an evil to be eradicated by it. That position is clear not only from the
language of the Clause, but also from our nation's early history. For
example, one day after the House of Representatives voted to adopt what
was to become known as the Religion Clauses, a resolution was
intro3 See Ex Parte Garland, 71 U.S. 333, 397 (1866) (quoting Justice Story's CoMMENTAMES ON
THE CONsTrruTION 1878).
4 Until 1833, Part I Article III of the Massachusetts Constitution read, in part, as follows:
As the happiness of a people, and the good order and preservation of civil
government, essentially depend upon piety, religion and morality; and as these
cannot be generally diffused through a community, but by the institution of the
public worship of God, and of public instructions in piety, religion and morality:
Therefore to promote their happiness and to secure the good order and
preservation of their government, the people of this commonwealth have a right to
invest their legislature with power to authorize and require, and the
legislature shall, from time to time, authorize and require, the several towns,
parishes, precincts, and other bodies politic, or religious societies, to make suitable
provision, at their own expense, for the institution ofthe public worship of God,
and for the support and maintenance of public Protestant teachers of piety,
religion and morality, and in all cases where such provision shall not be made
MA. CONST. art. III (amended 1833).
duced in Congress calling on President Washington to proclaim a day of
prayer and thanksgiving to God. That resolution passed the Congress
and President Washington responded with the proclamation
recommending "to the people of the United States a day of public thanksgiving
and prayer to be observed by acknowledging with grateful hearts the
many signal favors of Almighty God especially by affording them an
opportunity peaceably to establish a form of government for their safety
and happiness."5 Virtually all Presidents since Washington have issued
this type of proclamation.
Most Presidents, including Madison and Jefferson, and recently
George Bush, have likewise publicly prayed to God for God's blessing in
their inaugural speeches. Moreover, in Washington's case, immediately
following his inauguration, the President and both Houses of Congress
retired to St. Paul's Chapel in New York for a prayer service conducted
by the Episcopal Bishop of New York. The prayer service had been
specifically provided for in a joint resolution of Congress.
Congress has always prayed as well. As the Supreme Court noted in
Marsh v. Chambers,' during the week Congress proposed the
Establishment Clause to the states, it also voted to appoint and to pay for a
chaplain for each House of Congress.7 In Marsh, the Supreme Court noted
that James Madison, the drafter of the Establishment Clause, was a
member of the committee that proposed hiring the chaplain' and had
himself voted in favor of the bill.9 However, what the Court failed to add
was that the House chaplains were specifically authorized not only to
offer daily prayer, but also to conduct regular Sunday church services in
the hall of the House of Representatives. l ° It has been documented that
both Presidents Jefferson and Madison often attended those services.
Moreover, the Supreme Court prayed and still does. In fact, the
Court's practice of opening its sessions with the invocation "God save
this Honorable Court" dates from at least the time of Chief Justice John
Marshall, the author of Marbury v. Madison." But the historical record
on religion is not limited to a favorable view of prayer by the three
branches of government. Similar types of historical precedents
demonstrate that religious education was also favored by both the early
Con5 This Thanksgiving proclamation was issued in 1789. See 132 CONG. REC. H1153-02
(1986) (statement of Mr. Kemp).
6 463 U.S. 783 (1983).
7 Id. at 788.
8 Id. at 788 n.8.
10 See Rodriguez, supra note 2, at 1165 n.66 (explaining that House of Representatives
elected chaplains to open sessions with prayer and that Congress enacted statute to
provide for payment for chaplains).
11 5 U.S. (1 Cranch) 137 (1803).
gresses and Presidents. Nobody viewed those positions as
unconstitutional or remarkable.
For example, on the same day in 1789 that Madison introduced in
Congress what was to become the Bill of Rights, the House of
Representatives took up the question of reenacting the Northwest Ordinance.' 2
The Ordinance was reenacted with a provision that stated as follows:
"Religion, morality, and knowledge being necessary to good government
and the happiness of mankind, schools and the means of education shall
forever be encouraged."' 3 During the next fifty-six years, Congress
issued land grants in the Northwest Territory for both public schools and
Until 1897, Congress consistently appropriated money to pay
churches and religious organizations for the religious education of
Indians. For example, one of the treaties that Thomas Jefferson entered into
with the Kaskaskia Indians provided, in part, that "whereas the greater
part of said Tribe have been baptized and received into the Catholic
church, to which they are much attached, the United States will give
annually for seven years one hundred dollars toward the support of a
priest of that religion.., and... three hundred dollars to assist the said
Tribe in the erection of a church."' 4 The government's practice of
making payments like this did not stop until 1897, a century after the
adoption of the Establishment Clause. The practice, however, was not
stopped because it was thought to violate the Establishment Clause.
Rather, Congress discontinued the practice because it decided that it was
too expensive. Congress had reached the point where it was
appropriating a half million dollars each year for the religious education of Indians.
Nevertheless, the practice was never thought to be unconstitutional. A
congressional provision for religious education was generally assumed to
be no different than a congressional provision for congressional and
military chaplains-provisions which continue to be in effect today.
II. THE SUPREME COURT AND THE ESTABLISHMENT CLAUSE
A. Everson v. Board of Education-A JurisprudentialEarthquake
In 1947, a jurisprudential earthquake took place with the Supreme
Court's decision in Everson v. Board of Education.'" In Everson, the
Supreme Court held that the Establishment Clause incorporated the
notion of liberty contained in the Fourteenth Amendment and would
henceforth be adopted and applied to the states. In addition, after quoting a
12 Ordinance of 1787: The Northwest Territorial Government (July 13, 1787).
13 -Ordinance of 1787, Art. III.
14 See Jaffree v. Board of School Commissioners of Mobile County, 554 F. Supp. 1104, 1117
(S.D. Ala. 1983).
15 330 U.S. 1 (1947).
small portion of a private letter written by President Jefferson, the Court
announced that the purpose of the Establishment Clause was to "erect 'a
wall of separation between Church and State.'"' 6 Despite this
conclusion, the Court was sharply divided over whether providing school bus
transportation to parochial school students violated the wall of
It is difficult to overstate the magnitude of the shift in analysis that
had taken place in the Court. As a theoretical matter, incorporating the
Establishment Clause into the Fourteenth Amendment did not simply
broaden or extend the reach of the Clause. Rather, the incorporation
completely reversed what the Establishment Clause was originally
intended to accomplish. 17 Remember, the Establishment Clause was
crafted to prevent Congress from interfering with the states' ability to
establish their own religions. Following Everson, the Supreme Court
stated that the states could not establish their own religions-something
that the Establishment Clause was designed to prevent. Not only were
the states prohibited from establishing their own religions (something
that they had lost interest in doing anyway), but now they were forced to
observe a rigid wall of separation between church and state.
The terms of the debate have forever been changed because of the
Everson decision. The debate which occurred in the first Congress
concerned how much government land the religious schools needed. In
contrast, following the Everson decision, the debate in the Supreme Court
has been reduced to whether or not the Constitution permits the free use
of school buses. Everson was only the starting point in the evolution of
Establishment Clause thinking. Over the next forty years, the Court
struggled to apply what it had initiated in Everson.
Cases After Everson-No ClearStandard
In attempting to build its wall of separation, the Supreme Court has
decided a series of education cases that, read together, simply defy
comprehension. For example, the Court has held that states could lend
parochial school children geography textbooks,'" but not maps. i 9 These
ap16 Id. at 16.
17 For an interesting article challenging the incorporation of the Establishment Clause to
the states, see generally Note, Rethinking the Incorporationof the EstablishmentClause:A
FederalistView, 105 HARv. L. REV. 1700 (1992). The author's main premise is that the
Framers intended the clause to embody the concept of federalism. Id. at 1703. For this
reason, the author argues, the Establishment Clause was a "uniquely poor candidate for
incorporation." Id. at 1700; see also William K. Lietzau, Rediscovering the Establishment
Clause:Federalismand the Rollback of Incorporation,39 DEPAuL L.R. 1191 (1990)
(asserting clause was meant to be applied only against national government).
18 Board of Education v. Allen, 392 U.S. 236 (1968).
19 Meek v. Pittenger, 421 U.S. 349, 362-66 (1975).
parently conflicting decisions caused Senator Daniel Patrick Moynihan
of New York to quip that the next case will have to be about atlases,
which are books of maps. In addition, the Court has held that the
Constitution permitted a state to lend parochial school children history
books, but not film strips;20 science textbooks, but not science kits.
Moreover, the Court has said that a state could pay for bus
transportation to parochial schools, 2 1 but not from parochial schools to field trip
sites.2 2 States could conduct speech and hearing services inside
parochial schools, 23 but could only give the required therapeutic services
Contributing to the uncertainty caused by the Court's decisions is
that the results were achieved by an ever-shifting majority and series of
pluralities of Justices. Some Justices, from time to time, confessed that
the Court's Establishment Clause cases were confused, unsettled or even
downright unprincipled. Sometimes even the majority would concede
the same. For example, in Walz v. Tax Commission,2 s then Chief Justice
ternal inconsistency in the Court's Establishment Cwlaaussceocnassidese.r2a6ble
inBurger, writing for the Court, admitted that there
The Burger Court, in Lemon v. Kurtzman, crafted the three-part
Lemon test which was designed to relieve some of the inconsistency.2 7
This test provides that governmental actions do not violate the
Establishment Clause if they: (a) have a secular purpose; (b) have a primary
effect that does not advance religion; and (c) do not result in what the
Court called excessive entanglement between religion and the state.28
Unfortunately, the three-part Lemon test has only managed to confuse
Establishment Clause issues further. Ten years ago, the Court
conceded, with considerable understatement, that the Lemon test has
sacrificed clarity and predictability for the benefit of flexibility. In fact, the
Lemon test is so flexible that in the case of County ofAllegheny v.
American Civil Liberties Union,29 the Court managed to uphold the public
display of a menorah and Christmas tree, 30 yet struck down the display of a
creche.3 ' More enigmatic, however, was that all nine Justices purported
to apply some variation of the Lemon test yet managed to write four
different opinions. Only two justices agreed with the case's two holdings.
In addition to its lack of clarity and predictability, the Lemon test
suffers from an additional flaw. The interplay of the Lemon test's effects
and entanglement provisions has created a catch-22 for parochial
schools. This irreconcilable position was best illustrated by the Supreme
Court's decisions in Aguilar v. Felton3 2 and School District of Grand
Rapids v. Ball.3 3 In both cases, the Court held that the state's providing
remedial educational services to educationally and economically
deprived school children who attended parochial school violated the
Establishment Clause. The court reached this conclusion in Aguilar by
reasoning that the overbearing surveillance that would be necessary to
prevent a violation of the effects test would itself violate the
entanglement test.3 4 The Court's concern was that public employees teaching in
what the Court termed a "pervasively sectarian"35 atmosphere would
succumb to the pressures of the environment and begin to conform their
instruction to the sectarian environment.3 6 Accordingly, the parochial
school students would either be subjected to indoctrination in the
particular religious tenets at public expense, thus violating the effects test, or
the government would have to undertake such overbearing surveillance,
thus violating the entanglement test.
A series of cases in the lower courts has stretched the Aguilar
decision even further. These cases present the question of whether Aguilar
permits remedial services to be provided in mobile vans parked on or
adjacent to parochial school property. In Pulido v. Cavazos,3 7 the Eighth
Circuit ruled that those vans could constitutionally be parked on or
adjacent to the school property.3s However, in Walker v. San
FranciscoUnified School District,39 a district court in California disagreed with the
Pulido decision and held that those mobile vans, which were replacing
the parochial school classrooms that the Aguilar Court said could not be
used, had to be parked off the church property.4 0 The court ruled that
the vans could not be brought onto the churches' or the schools' parking
lots. Identical cases are presently before the Sixth Circuit and the
Eastern District of New York.
The foregoing cases demonstrate how far from its origins the
Establishment Clause analysis has wandered. 4 1 As mentioned, the First
Congress did not quibble over whether school children could receive
government supported education on parochial school property. Rather, in some
cases Congress actually gave property to parochial schools. Even
assuming that Aguilar was correctly decided, the holding in that case was
based on the existence of a so-called "pervasively sectarian atmosphere"
within the parochial school building. Does the inside of a public van
somehow acquire a pervasively sectarian atmosphere merely because it
has been driven onto a parking lot of a church or a school? Religiosity
does not seep like radon gas up from the ground and into the structure of
the van. Aguilar's analysis would be completely irrelevant to whether or
not services could be offered in nondenominational vans devoid of
religious symbols parked temporarily near or on the property of a church
C. A Call ForReexamination
In their present posture, the Establishment Clause cases are not
considered "great" constitutional cases. They are, in many ways, silly
cases. But one or more of them may ultimately yield great results. Even
before Justices Souter and Thomas joined the Court, at least four
Justices had indicated their willingness to undertake a very basic
reexamination of the Supreme Court's Establishment Clause cases. In his
dissent in Wallace v. Jaffree,4 2 then Justice Rehnquist, now Chief Justice
Rehnquist, specifically called for such a reexamination. 43 He recounted
some of the same history described earlier in this article. Chief Justice
Rehnquist concluded: "As its history abundantly shows,.., nothing in
the Establishment Clause requires government to be strictly neutral
between religion and irreligion, nor does that Clause prohibit Congress or
the States from pursuing legitimate secular ends through
nondiscriminatory sectarian means."44 Justice White, writing a separate dissent,
41 See A.E. Dick Howard, The Wall of Separation:The Supreme Courta
UncertainStonemason, in RELIGION AND THE STATE 85, 113 (James E. Wood, Jr. ed., 1985).
The years since Everson have brought so much gloss on the First Amendment
that the Court has fallen into habit-natural to judges as to lawyers-of
putting gloss on gloss. Thus, it becomes more important to reconcile an opinion
with Allen or Lemon than to go back to first principles.
agreed with Just4ic5e Rehnquist in calling for a reexamination of
Likewise, in Edward v. Aguillard4, 6 Justice Scalia called for a
reexamination of what he termed the Court's "embarrassing Establishment
Clause jurisprudence."4 7 In Allegheny, Chief Justice Rehnquist, Justices
White and Scalia all joined Justice Kennedy's separate opinion which
announced his belief that "[slubstantial revision of our Establishment
Clause doctrine may be in order."48 Justices Souter and Thomas have
yet to write an opinion on the Clause. Yet if either of them is willing to
join the others in reexamining the Establishment Clause, five votes
would be present to do so and the results could be momentous. Justice
O'Connor has already stated her position on the Establishment Clause,
saying that it prohibits governmental "endorsement" of religion.4 9 In
contrast, Justices Blackmun and Stevens have continued to fully
embrace the Lemon test.
The next school funding cases to arrive at the Court may well be the
occasion for a reexamination not only of Aguilar, but also of some forty
years of parochial school aid cases. In fact, the three-part Lemon test
itself is already under siege. In Lee v. Weisman, a graduation school
prayer case, the petitioners explicitly urged the Court to abandon the
Lemon test and much of its Establishment Clause analysis.50 They
asked the Court to hold that the only governmental actions which violate
the Establishment Clause are those that are coercive. Moreover, the
Solicitor General asked the Court to abandon the Lemon test, at least in
the context of civic acknowledgment of religion cases involving
menorahs, crucifixes, crosses, and other religious symbols. The Solicitor
General has argued that in such cases, the Court should apply a less
restrictive coercion test.
Predictions are always risky, but the best guess is that the Supreme
Court will eventually do to the Establishment Clause what it did to the
45 Id. at 91 (White, J., dissenting).
46 482 U.S. 578 (1987).
47 Id. at 639 (Scalia, J., dissenting). See Note, The Establishment Clause and Justice
Scalia: What the Future Holdsfor Church and State, 63 NoTRE DAME L. REv. 380, 389-92
(1988) (describing Justice Scalia's dissent in Aguillard).
48 County of Allegheny, 492 U.S. at 656 (Kennedy, J., concurring in part, dissenting in
49 See Note, James M. Lewis & Michael L. Vild, A ControversialTwist of Lemon: The
Endorsement Test as the New EstablishmentClause Standard,65 NoTRE DAME L. REv. 671,
673-97 (1990) (analyzing the endorsement test). The author asserts that such a test would
make it more likely for the court to find governmental establishment clause violations. Id.
50 The Supreme Court has now decided this case. See Lee v. Weisman, 112 S.Ct. 2649
(1992). The Court determined that it was not necessary to reassess the Lemon test at the
time due to the "pervasive" degree of government involvement with religious activity.
Free Exercise Clause in the Smith"' case. In Smith, Justice Scalia wrote
that neutral laws of general applicability do not violate the Free Exercise
Clause. 2 The Smith test raises all sorts of questions and interesting
problems for the Free Exercise Clause. Justice Scalia had first adopted
that test in the case of Barnes v. Glen Theater,Inc., 3 which involved an
Indiana public nudity statute. Justice Scalia stated that the "neutral
laws of general applicability" test should apply in the free speech area to
determine the constitutionality of a law. 4 Moreover, last term, in
another free speech case, Cohen v. Cowles Media Company,5 5 the Court
applied a similar analysis. In that case, the Minneapolis Star tried to avoid
liability for breach of contract or promissory estoppel based upon its
reporter's violation of a promise of confidentiality to a source. 5 6 The
newspaper argued that the law of promissory estoppel did not apply to it in
this context because of the Free Speech and Free Press Clause. The
Supreme Court rejected that position, holding that neutral laws of
general applicability can be applied to the press without violating the Free
Press or the Free Speech Clauses. 7
A similar test could be applied to Establishment Clause cases. If
that were the case, a state program would not violate the Establishment
Clause if it were a neutral program of general applicability-in other
words, a program that is available generally to all citizens, and not just
to those of a particular faith. Title I programs of remedial services, for
example, would easily pass that test. Those services are available to
economically and educationally deprived school children wherever they
attend school. Providing those services in the child's regular school
building, public or private, would therefore be no problem. Consequently,
Aguilar would be overruled and tuition tax credits would be upheld. In
addition, voucher programs would be constitutional as would be virtually
all other forms of assistance that have been challenged for the last
quarter century, so long as they were neutral programs of general
Are there any clues beyond what the Court has said in the free
speech and free exercise areas? Yes, there are some. At the oral
argument in Lee, Justice Scalia repeatedly asked why should not the test
under the Establishment Clause be whether the state action was
nonsectarian and noncoercive. Justice Kennedy suggested a similar test in his
Allegheny opinion, an opinion that was joined by Chief Justice Rehnquist
51 Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).
52 Id. at 880-82.
53 111 S.Ct 2456 (1991).
5545 I1d1.1 aSt.C24t6275.13 (1991).
and Justices White and Scalia. In that case, Justice Kennedy wrote that
the Establishment Clause prohibits "coercive" practices.5 8 Thus, it
prohibits "obvious effort[s] to proselytize on behalf of a particular
religion."5 9 But, Justice Kennedy added that "noncoercive government
action within the realm of flexible accommodation or passive
acknowledgment of existing symbols does not violate the Establishment
Clause unless it benefits religion in a way more direct and more
substantial than practices that are accepted in our national heritage."6 ° Among
the practices that Justice Kennedy indicated that were accepted as a
part of our6 1national heritage was "governmental support for religious
The standards that have been discussed-whether state action is
nonsectarian and noncoercive and whether a program is a neutral one of
general applicability-would comport very well with the history of the
Establishment Clause. It is suggested that such a standard, or
something approaching it, will become the next Establishment Clause test
sometime in the near future. If so, the Establishment Clause will be
returned more closely to its original roots, and the world will be a much
safer place for parochial schools.