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PSC 4480 Research Paper 2
The Establishment Clause: A Historical Analysis
Gregory T. Bogosian
2
There are various interpretations of the establishment clause of the first amendment to the
United States Constitution. Most of these interpretations are based on public policy concerns
rather than historical concerns. From a historical perspective, the correct interpretation of the
establishment clause is that it forbids the federal government from establishing an official church
and when incorporated against the states, prevents the states from establishing official churches.
This interpretation is also useful from a legal perspective because it makes consistent
jurisprudence easier than the Court’s interpretation of the clause.
Justice Hugo Black, writing for the Supreme Court in Everson v Board of Education of
the Township of Ewing, incorporated the establishment clause via the due process clause of the
fourteenth amendment to make it enforceable against the states and declared that the
establishment clause erects a wall of separation between church and state.1 “Separation of church
and state” is usually understood to mean that the government must give no aid to religion. Black
took the idea of separation of church and state from Thomas Jefferson’s letter to the Danbury
Baptist Association. In this letter, Jefferson declares that the establishment clause of the first
amendment separated church from state.2 There are various problems with the separation
interpretation, such as how exactly you define “aid” without preventing churches and their
officers from receiving basic public services like police and fire protection. However, the biggest
problem with the separation interpretation is that it is ahistorical. As Philip Hamburger declares,
eighteenth century Americans considered church and state distinct concepts and institutions with
distinct jurisdictions. However, they also believed that this distinction allowed for alliances
1 Everson v. Board of Education of the Township of Ewing.
2 Thomas Jefferson, Letter to the Danbury Baptists,the Heritage Foundation,
http://www.heritage.org/initiatives/first-principles/primary-sources/jefferson-s-letter-to-the-danbury-baptists.
3
between church and state, even official established churches.3 Protestant disestablishmentarians,
such as Robert Robinson, accused established churches of an improper union with the state.
However, even such disestablishmentarians still desired connections between church and state,
such as recognition of church property and church marriages by the state, as well as teaching
obedience to civil laws and praying for the state by the churches.4 In colonial and post-colonial
times some intellectuals advocated for separation of church and state. However, their ideas were
unpopular and their influence did not reach into the Bill of Rights. Roger Williams, founder of
Rhode Island, argued for something akin to separation of church from state in declaring that the
state must not enforce religious laws and, perhaps more importantly, that a good civil society did
not depend on Christianity. However, his ideas were unpopular in his native Massachusetts,
which led the Massachusetts General Court to banish him from the colony.5 As Noah Webster
argued in his defense of the Congregationalist establishment, Roger William’s separationist
position was in part derived from his opposition to organized, professional clergy, a position that
most Protestants and most Americans would not have endorsed.6 John Locke, in his defense of
religious toleration, argued that the church is separate and distinct from the state. However, this
is a descriptive statement, not a normative statement. The only normative implication of this
statement that Locke mentioned is that church officers and civil officers must have distinct
jurisdictions. He did not declare that the state must take no cognizance of religion, or even that
established churches were incompatible with good governance.7 Thomas Paine argued for
separation of church and state. As a rationalist and deist, he was opposed to organized religion in
3 Philip Hamburger,Separation of Church and State, Harvard University Press, Cambridge, Massachusetts,London,
England, 2002, 247.
4 Hamburger, 298.
5 Hamburger, 435 and 448-449.
6 Hamburger, 557-558.
7 Hamburger, 569-580.
4
general.8 However, the majority of American disestablishmentarians did not want separation of
church and state because it suggests that the state will be hostile to religion, which they did not
want.9 In Memorial and Remonstrance James Madison argued that secular states should take no
cognizance of religion against Virginia’s general assessment bill. However, his draft of the first
amendment was rejected. So his opinions do not dictate the correct interpretation of the first
amendment. The first amendment says “Congress shall make no law respecting an establishment
of religion…” not “Congress shall make no law respecting religion…” This together with the
rejection of Madison’s draft of the first amendment by the first Congress, indicates that the
authors of the first amendment did not agree with Madison’s no cognizance position and thought
that Congress could legislate on religion in certain circumstances so long as Congress did not
attempt to establish an official church.10 As Louis Fisher argues, the first Congress did take
cognizance of religion in its legislation. It passed the Northwest Territory Ordinance to subsidize
religious education, it granted land to a mission society to convert the natives to Christianity, and
it hired chaplains for both houses of Congress.11 As Bruce J. Dierenfield declares, these practices
were uncontroversial at the time.12 Congress also outlawed blasphemy and mandated Sabbath
observance in the federal territories.13 Some have argued that these actions by the first Congress
were exceptions rather than the rule and thus should not be taken as precedents. Others have
argued that these actions were simple hypocrisy and were unconstitutional even then.14 The first
8 Hamburger, 630-656.
9 Hamburger, 669-682.
10 Hamburger, 1037-1062.
11 Louis Fisher,Religious Liberty in America: Political Safeguards,University Press of Kansas.
2002 48-49.
12 Bruce J. Dierenfield.The Battle over School Prayer: How Engel v. Vitalechanged America. University Press of
Kansas 2007 13.
13 Lash, 1098.
14 Carl H. Esbeck, The Establishment Clause as a Structural Restraint on Governmental Power. Iowa Law Review
20.
5
argument leaves it a mystery as to which government actions should be considered precedential
and controlling on constitutional interpretation. The second argument tacitly admits that the
actions of the first Congress, the Congress that drafted the Bill of Rights, are incompatible with
any non-trivial conception of separation of church and state. More importantly, the federal
government still employs chaplains for both houses of Congress and the military. The Supreme
Court has declined to rule either practice unconstitutional. If hiring religious officers with federal
tax dollars to provide religious services to the government’s officers is not a violation of the
separation of church and state, then it is difficult to determine what would be a violation of the
separation principle. So if these actions of the first Congress are unconstitutional acts of
hypocrisy, then they are unconstitutional acts of hypocrisy that persist into modern times that the
Supreme Court itself is complicit in.15
This shows the second problem with the separation principle. The Court is inconsistent
and incoherent with its application of the separation interpretation. In Lemon v. Kurtzman, the
Court ruled that it is unconstitutional to subsidize the salaries of teachers at sectarian schools
because the necessary regulations to conform to the no aid principle would create excessive
entanglement between church and state.16 However, in Zobrest v. Catalina Foothills School
District as well as in Agnosti v. Felton, the Court ruled that it is constitutional for the
government to pay for sign language interpreters to assist deaf pupils at sectarian schools in
receiving both the secular and religious aspects of their education, even though such activity
does necessarily aid the spread of religion and create entanglements between church and state.17
15 Fisher,52-53.
16 Lemon v. Kurtzman.
17 Zobrest v. Catalina Foothills School District.
6
18 In Board. of Education of Kiryas Joel v. Grumet, the Court ruled that it is unconstitutional to
create a new school district with borders that match the borders of a religious community so that
the community’s children can attend public schools and receive secular instruction without
interacting with students of other faiths. However, in the same case, the Court ruled that it is
constitutional to draw the lines of a village or other municipality with such borders so that a
religious community can govern itself without interference from those of other faiths. There is no
principle that could justify creating some municipal government units to benefit peculiar faiths,
but not other units. In Zelman v. Harris, the Court ruled that it is constitutional to subsidize the
tuition of students to attend sectarian schools.19 The problem with allowing subsidies to parents
who send their children to sectarian schools is that it still creates a financial incentive to have
children educated in religious schools that would not exist otherwise, so it still aids religion. The
problem with allowing some forms of subsidies to religious schools, but not others, as Justice
Douglass argued in his concurring opinion in Lemon v. Kurtzman, is that all the money that goes
to sectarian schools goes into the same budget controlled by the same officers. Therefore, it all
effectively aids religion.20 In Rosenberger v. University of Virginia, the Court ruled that public
universities are required to provide funding to explicitly Christian publications made by their
students if they offer it to publications with non-religious motivating ideologies under the same
terms.21 Rosenberger v. University of Virginia was decided under the free speech clause rather
than the establishment clause. However, it implies that complying with the free speech clause,
under certain circumstances, requires government institutions to provide financial assistance to
groups that explicitly seek to spread a particular religion. Therefore, the separation interpretation
18 Agnostini v. Felton.
19 Zelman v. Simmons-Harris.
20 Lemon . Kurtzman.
21 Rosenberger v. University of Virginia.
7
requires us to conclude that complying with the free speech clause requires violating the
establishment clause and vice versa. Since the establishment clause and the free speech clause
are part of the same amendment, no interpretation that causes them to contradict each other is
acceptable logically, or as a matter of public policy. The first amendment cannot be interpreted
in any fashion that makes it self-contradictory. Therefore, if the separation of church and state
interpretation ever causes the establishment clause to contradict the free speech clause or the free
exercise clause, then the separation of church and state is a bad interpretation of the
establishment clause.22 David O’Brien argues that there is an inherent tension between the
establishment clause and the free exercise clause.23 Because the first amendment can never be
interpreted in a way that makes it contradict itself, the “tension” claim is either meaningless or
false. Either way, it does not help the separation interpretation. The Court held in Van Orden v.
Perry that it is constitutional to display the Ten Commandments in a state park.24 However, in
McCreary v. American Civil Liberties Union, the Court held that it is unconstitutional to display
the Ten Commandments in front of courthouses owned by a state government.25 The problem
with these two rulings holding simultaneously is that in both cases the same government with the
same personnel, the same tax revenue, and the same constitutional restraints is endorsing a
particular religious message in both cases. So it is illogical for the Court to reach opposite
conclusions in both cases as it has.
Noah Feldman argues that the purpose of the establishment clause was to protect liberty
of conscience.26 There are two problems with this interpretation. First, in the eighteenth century
22 Esbeck. 11-12.
23 David M. O’Brien, Constitutional Lawand PoliticsVolume2: Civil Rights and Civil Liberties,8th edition,Page 735.
24 Van Orden V. Perry.
25 McCreary v. ACLU.
26 Noah Feldman, Intellectual Originsof the EstablishmentClause,NYU Law Review, 405.
8
it was generally accepted that the establishment clause protected state established churches from
interference from the federal government.27 Claiming that the establishment clause protected
liberty of conscience while at the same time guaranteeing the right of state governments to
enforce the religious beliefs of one group against another group is counterintuitive at best and
contradictory at worst. The second problem, as Stephen Feldman points out, is that when the Bill
of Rights was ratified, people in America understood free exercise of religion and liberty of
conscience to be synonymous.28 So interpreting the establishment clause to be a protection of
liberty of conscience would render the free exercise clause redundant, which is unacceptable. Ira
C. Lupo argues that the establishment clause and the free exercise law read together should be
interpreted to protect equal religious liberty.29 Lupo defines equal religious liberty as formal
equality, that is, equality before the law rather than equality in reality. This would imply that
religion cannot be the basis of any legal classification, but aid can be given to religious
organizations so long as their religious status is not the reason for the aid.30 31 This position is
appealing from a public policy perspective. It prevents religious discrimination without requiring
the state to deprive religious organizations of basic social services like police and fire protection.
However, it is just as ahistorical as the separation theory. As Stephen Feldman argues, the
majority of Americans, including the Founders, understood the right of liberty of conscience and,
therefore free exercise to only extend to Protestant Christians.32 Therefore, the literate adults of
the time in which the Bill of Rights was written and ratified would have never understood the
27 Dierenfield,page 12.
28 Stephen M. Feldman, PleaseDon’t Wish me a Merry Christmas:A Critical History of The Separation of Church
and State, New York University Press,New York and London, 1997, 3708.
29 Ira C. Lupo., Reconstructing the EstablishmentClause:The Caseagainst Discretionary Accommodation of
Religion.University of PennsylvaniaLawReview Vol. 140, No. 2 (Dec., 1991), Page 558.
30 Lupo, 581.
31 Lupo, 588.
32 Stephen Feldman. 3584-3605.
9
establishment clause, the free exercise clause, or both together to guarantee equal religious
liberty between people of all faiths.
Thomas J. Curry argues that in eighteenth century America no one had a coherent
definition of the term “establishment of religion” at all. Rather, he argues that the term
“establishment” only referred to a vague image of religious tyranny.33 He argues that Americans
did not actually distinguish between the establishment of one religion over all others and non-
preferential aid to all religions under the same terms.34 Those who argued against general
assessments like that proposed in Virginia argued that they were not non-preferential at all and
were merely a ruse to reinforce Anglican dominance.35 The defenders of the religious regimes
that actually had direct subsidies to all Protestant churches, like Massachusetts, argued that they
were not established churches at all.36 Curry argues that the first Congress was expounding
general principles rather than solving concrete problems with the Bill of Rights.37 He argues that
the principle behind both religion clauses was that the state has no competence in religious
matter and that the founding generation left it to future generations to deduce and infer the
implications of that principle.38 The problem with this interpretation is that if the term
“establishment of religion” did not have a coherent definition when the first amendment was
written, then there is no clear way to deduce and infer what principles it was trying to express.
More importantly, the first Congress did not follow the principle that the government has no
competency in religion. As stated above, the first Congress did pass laws that took cognizance of
33 Thomas J. Curry, The FirstFreedoms: Church and State in America to the Passageof the 1st amendment, Oxford
University Press,1986, 211.
34 Curry, 209.
35 Curry, 210.
36 Curry, 213.
37 Curry, 205.
38 Curry, 221.
10
religion such as land grants to mission societies and hiring congressional chaplains. Curry
argues that this means that the founding generation did not live up to their own principles.39
However, actions speak louder than words. Principle and practice are conceptually distinct.
However, if there is a conflict between the principles that someone claims to espouse and what
they actually do, then what they actually do should be considered the measure of their beliefs. If
someone does not live up to their principles in situations where they are capable of living up to
them, then the simplest conclusion is that they do not actually believe in those principles at all. If
the first Congress did take cognizance of religion in their terms, then they did not actually
believe that they held no competence in religious affairs.
The Supreme Court incorporated the establishment clause against the states in 1947 in the
case of Everson v Board of Education.40 So the meaning of the establishment clause needs to be
understood at least in part by what it means when applied against the states. Carl Esbeck argues
that there is no logical way to incorporate the establishment clause and thereby render it
enforceable against the states. He further argues that the clause contains inherent federalism, that
is, inherent protection for the powers of the several states, which the Court willfully ignored in
Everson.41 As Frederick Mark Gedicks declares, the three standard arguments against
incorporating the establishment clause are: 1. the authors of the Bill of Rights only intended for it
to apply to the federal government, not to the states. So it cannot be logically interpreted to apply
against the states. 2. It does not protect an individual right, so it cannot be a component of
ordered liberty enforceable via the due process clause. 3. The failure of the Blaine amendment in
1875 shows that the authors of the fourteenth amendment did not understand it to render the
39 Curry, 221.
40 Everson v. Board of Education.
41 Esbeck, 25-26.
11
establishment clause enforceable against the states.42 As Gedicks argues, the logical and textual
problems with incorporating the establishment clause can be overcome by taking Hohfeldian
relationships into account. A disability on party A to do X necessarily provides party B with an
immunity from any effects of X when done by A.43 Therefore, any disability that the
Constitution imposes on the federal government necessarily grants an immunity against federal
action to both the states and the citizenry.44 Thus the establishment clause, in imposing a
disability on Congress by preventing it from legislating on establishments of religion, also grants
an immunity to federal action concerning establishments of religion to individuals.45 All that
incorporation requires logically is extending the individual immunity to apply against the state
governments. This can be accomplished by interpreting the privileges and immunities clause to
include the immunity against action concerning religion held by individuals through the
establishment clause.46 The proposition and failure of the Blaine amendment is not inconsistent
with the fourteenth amendment having already incorporated the establishment clause to apply
against the several states. The purpose of the Blaine amendment was not to incorporate the
establishment clause to render it enforceable against the states, but rather to prevent catholic
schools from receiving public funds.47 The opponents of the Blaine amendment in Congress
argued that the establishment clause and the free exercise clause were already enforceable
against the states.48 The Blaine amendment failed not because the establishment clause was not
already enforceable against the states, but because it was already enforceable against the states.
42
FrederickMark Gedicks, Incorporationof the EstablishmentClause Againstthe
States:A Logical, Textual,andHistorical Account, IndianaLaw Journal,Vol.88:669, 683-689.
43 Gedicks,692-693.
44 Gedicks,694-696.
45 Gedicks,700-701.
46 Gedicks,708.
47 Lash, 1147.
48 Lash, 1150.
12
The original purpose of the establishment clause was to impose two restrictions on Congress, one
to prevent Congress from establishing a national church and one to prevent Congress from
interfering with state establishments.49 As Kurt T. Lash argues, the establishment clause was in
part written to protect state established churches from the new federal government, and everyone
involved in drafting it agreed that it had this effect.50 In his Commentaries on the Constitution,
Joseph Story echoed this idea that the federal government had no power over religion, but state
governments did.51 The Supreme Court accepted this interpretation in 1833 in upholding a New
Orleans city ordinance that banned open casket funerals.52 This evidence suggests that the
establishment clause was never intended to protect an individual right, which renders its
incorporation questionable from an originalist perspective at best and impossible at worst.
However, if the authors of the fourteenth amendment understood the establishment clause to
protect an individual right and intended to render their interpretation of it enforceable against the
states rather than the original meaning, then incorporation ironically makes sense from an
originalist perspective.53 The framers of the fourteenth amendment did intend for it to render all
provisions in the first eight amendments to the Constitution, including the establishment clause,
enforceable against the states.54 John Bingham, the principle author of the first section of the
fourteenth amendment, which contains the privileges and immunities clause, explicitly stated
that the privileges and immunities clause by itself rendered the Bill of Rights enforceable against
the states.55 Jacob Howard, the floor manager for the debate over passing the fourteenth
49 Gedicks,703.
50 Kurt T. Lash, "The Second Adoption of the EstablishmentClause:The Riseof the Non-Establishment Principle,"
Loyola Law School Los Angeles, Arizona State Law Journal 1995,1090-1091.
51 Lash, 1094-1095.
52 Lash, 1096.
53 Lash, 1099-1100.
54 Gedicks,714.
55 Gedicks,716-717.
13
amendment, introduced it by declaring that it would render the first eight amendments of the
constitution enforceable against the states. More importantly, no member of the House or Senate
disputed this interpretation.56 Therefore, incorporating the establishment clause to render it
enforceable against the states is both logically and historically sound.
In summary, attempts to read broad principles, such as “separation of church and state”
and “no aid to religion” into the establishment clause for the sake of public policy considerations
have produced inconsistent and useless jurisprudence. The only sound interpretation of the
establishment clause is that it prevents the federal government from establishing an official
church and, when incorporated via the fourteenth amendment, prevents state governments from
doing the same. This narrow interpretation is easier to reconcile with the historical record and
easier to put into practice.
56 Gedicks,718.
14
Bibliography
Curry, Thomas J. The First Freedoms: Church and State in America to the Passage of the First
Amendment. Oxford University Press. New York Oxford. 1986.
Dierenfield, Bruce J. The Battle over School Prayer: Howe Engel v. Vitale Changed America.
University Press of Kansas 2007.
Esbeck, Carl H. “The Establishment Clause as a Structural Restraint on Governmental Power.”
Iowa Law Review. 1998.
Feldman, Noah. “The Intellectual Origins of the Establishment Clause.” N.Y.U. Law Review.
May 2002.
Feldman, Stephen M. Please Don’t Wish Me A Merry Christmas. New York University Press.
New York and London. 1997.
Fisher, Louis. Religious Liberty In America: Political Safeguards. University Press of Kansas.
2002.
Gedicks, Frederick Mark. “Incorporation of the Establishment Clause against the
States: A Logical, Textual, and Historical Account.” Indiana Law Journal. Vol. 88:669
2013.
Hamburger, Philip. Seperation of Church and State. Harvard University Press. Cambridge,
Massachussets. London, England. 2002.
“Law and Religion: A Critical Anthology.” Ed. Stephen M. Feldman. New York University
Press. New York and London. 2000.
Lash, Kurt T. “The Second Adoption of the Establishment Clause: The Rise of the Non-
Establishment Principle.” Arizona State Law Journal. 1995.
Lupo, Ira C. “Reconstructing the Establishment Clause: The Case against Discretionary
Accommodation of Religion.” University of Pennsylvania Law Review.
40:2 (Dec. 1991). pp. 555-612
O’Brien, David M. Constitutional Law and Politics Volume 2: Civil Rights and Civil Liberties
8th edition. W. W. Norton and Company. New York. 2011.
Paulson, Michael A. “Religion, Equality, and the Constitution: An Equal Protection Approach to
Establishment Clause Adjudication.” Notre Dame Law Review: Vol. 61:311. 1986.

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PSC 4480 Research Paper 2

  • 1. 1 PSC 4480 Research Paper 2 The Establishment Clause: A Historical Analysis Gregory T. Bogosian
  • 2. 2 There are various interpretations of the establishment clause of the first amendment to the United States Constitution. Most of these interpretations are based on public policy concerns rather than historical concerns. From a historical perspective, the correct interpretation of the establishment clause is that it forbids the federal government from establishing an official church and when incorporated against the states, prevents the states from establishing official churches. This interpretation is also useful from a legal perspective because it makes consistent jurisprudence easier than the Court’s interpretation of the clause. Justice Hugo Black, writing for the Supreme Court in Everson v Board of Education of the Township of Ewing, incorporated the establishment clause via the due process clause of the fourteenth amendment to make it enforceable against the states and declared that the establishment clause erects a wall of separation between church and state.1 “Separation of church and state” is usually understood to mean that the government must give no aid to religion. Black took the idea of separation of church and state from Thomas Jefferson’s letter to the Danbury Baptist Association. In this letter, Jefferson declares that the establishment clause of the first amendment separated church from state.2 There are various problems with the separation interpretation, such as how exactly you define “aid” without preventing churches and their officers from receiving basic public services like police and fire protection. However, the biggest problem with the separation interpretation is that it is ahistorical. As Philip Hamburger declares, eighteenth century Americans considered church and state distinct concepts and institutions with distinct jurisdictions. However, they also believed that this distinction allowed for alliances 1 Everson v. Board of Education of the Township of Ewing. 2 Thomas Jefferson, Letter to the Danbury Baptists,the Heritage Foundation, http://www.heritage.org/initiatives/first-principles/primary-sources/jefferson-s-letter-to-the-danbury-baptists.
  • 3. 3 between church and state, even official established churches.3 Protestant disestablishmentarians, such as Robert Robinson, accused established churches of an improper union with the state. However, even such disestablishmentarians still desired connections between church and state, such as recognition of church property and church marriages by the state, as well as teaching obedience to civil laws and praying for the state by the churches.4 In colonial and post-colonial times some intellectuals advocated for separation of church and state. However, their ideas were unpopular and their influence did not reach into the Bill of Rights. Roger Williams, founder of Rhode Island, argued for something akin to separation of church from state in declaring that the state must not enforce religious laws and, perhaps more importantly, that a good civil society did not depend on Christianity. However, his ideas were unpopular in his native Massachusetts, which led the Massachusetts General Court to banish him from the colony.5 As Noah Webster argued in his defense of the Congregationalist establishment, Roger William’s separationist position was in part derived from his opposition to organized, professional clergy, a position that most Protestants and most Americans would not have endorsed.6 John Locke, in his defense of religious toleration, argued that the church is separate and distinct from the state. However, this is a descriptive statement, not a normative statement. The only normative implication of this statement that Locke mentioned is that church officers and civil officers must have distinct jurisdictions. He did not declare that the state must take no cognizance of religion, or even that established churches were incompatible with good governance.7 Thomas Paine argued for separation of church and state. As a rationalist and deist, he was opposed to organized religion in 3 Philip Hamburger,Separation of Church and State, Harvard University Press, Cambridge, Massachusetts,London, England, 2002, 247. 4 Hamburger, 298. 5 Hamburger, 435 and 448-449. 6 Hamburger, 557-558. 7 Hamburger, 569-580.
  • 4. 4 general.8 However, the majority of American disestablishmentarians did not want separation of church and state because it suggests that the state will be hostile to religion, which they did not want.9 In Memorial and Remonstrance James Madison argued that secular states should take no cognizance of religion against Virginia’s general assessment bill. However, his draft of the first amendment was rejected. So his opinions do not dictate the correct interpretation of the first amendment. The first amendment says “Congress shall make no law respecting an establishment of religion…” not “Congress shall make no law respecting religion…” This together with the rejection of Madison’s draft of the first amendment by the first Congress, indicates that the authors of the first amendment did not agree with Madison’s no cognizance position and thought that Congress could legislate on religion in certain circumstances so long as Congress did not attempt to establish an official church.10 As Louis Fisher argues, the first Congress did take cognizance of religion in its legislation. It passed the Northwest Territory Ordinance to subsidize religious education, it granted land to a mission society to convert the natives to Christianity, and it hired chaplains for both houses of Congress.11 As Bruce J. Dierenfield declares, these practices were uncontroversial at the time.12 Congress also outlawed blasphemy and mandated Sabbath observance in the federal territories.13 Some have argued that these actions by the first Congress were exceptions rather than the rule and thus should not be taken as precedents. Others have argued that these actions were simple hypocrisy and were unconstitutional even then.14 The first 8 Hamburger, 630-656. 9 Hamburger, 669-682. 10 Hamburger, 1037-1062. 11 Louis Fisher,Religious Liberty in America: Political Safeguards,University Press of Kansas. 2002 48-49. 12 Bruce J. Dierenfield.The Battle over School Prayer: How Engel v. Vitalechanged America. University Press of Kansas 2007 13. 13 Lash, 1098. 14 Carl H. Esbeck, The Establishment Clause as a Structural Restraint on Governmental Power. Iowa Law Review 20.
  • 5. 5 argument leaves it a mystery as to which government actions should be considered precedential and controlling on constitutional interpretation. The second argument tacitly admits that the actions of the first Congress, the Congress that drafted the Bill of Rights, are incompatible with any non-trivial conception of separation of church and state. More importantly, the federal government still employs chaplains for both houses of Congress and the military. The Supreme Court has declined to rule either practice unconstitutional. If hiring religious officers with federal tax dollars to provide religious services to the government’s officers is not a violation of the separation of church and state, then it is difficult to determine what would be a violation of the separation principle. So if these actions of the first Congress are unconstitutional acts of hypocrisy, then they are unconstitutional acts of hypocrisy that persist into modern times that the Supreme Court itself is complicit in.15 This shows the second problem with the separation principle. The Court is inconsistent and incoherent with its application of the separation interpretation. In Lemon v. Kurtzman, the Court ruled that it is unconstitutional to subsidize the salaries of teachers at sectarian schools because the necessary regulations to conform to the no aid principle would create excessive entanglement between church and state.16 However, in Zobrest v. Catalina Foothills School District as well as in Agnosti v. Felton, the Court ruled that it is constitutional for the government to pay for sign language interpreters to assist deaf pupils at sectarian schools in receiving both the secular and religious aspects of their education, even though such activity does necessarily aid the spread of religion and create entanglements between church and state.17 15 Fisher,52-53. 16 Lemon v. Kurtzman. 17 Zobrest v. Catalina Foothills School District.
  • 6. 6 18 In Board. of Education of Kiryas Joel v. Grumet, the Court ruled that it is unconstitutional to create a new school district with borders that match the borders of a religious community so that the community’s children can attend public schools and receive secular instruction without interacting with students of other faiths. However, in the same case, the Court ruled that it is constitutional to draw the lines of a village or other municipality with such borders so that a religious community can govern itself without interference from those of other faiths. There is no principle that could justify creating some municipal government units to benefit peculiar faiths, but not other units. In Zelman v. Harris, the Court ruled that it is constitutional to subsidize the tuition of students to attend sectarian schools.19 The problem with allowing subsidies to parents who send their children to sectarian schools is that it still creates a financial incentive to have children educated in religious schools that would not exist otherwise, so it still aids religion. The problem with allowing some forms of subsidies to religious schools, but not others, as Justice Douglass argued in his concurring opinion in Lemon v. Kurtzman, is that all the money that goes to sectarian schools goes into the same budget controlled by the same officers. Therefore, it all effectively aids religion.20 In Rosenberger v. University of Virginia, the Court ruled that public universities are required to provide funding to explicitly Christian publications made by their students if they offer it to publications with non-religious motivating ideologies under the same terms.21 Rosenberger v. University of Virginia was decided under the free speech clause rather than the establishment clause. However, it implies that complying with the free speech clause, under certain circumstances, requires government institutions to provide financial assistance to groups that explicitly seek to spread a particular religion. Therefore, the separation interpretation 18 Agnostini v. Felton. 19 Zelman v. Simmons-Harris. 20 Lemon . Kurtzman. 21 Rosenberger v. University of Virginia.
  • 7. 7 requires us to conclude that complying with the free speech clause requires violating the establishment clause and vice versa. Since the establishment clause and the free speech clause are part of the same amendment, no interpretation that causes them to contradict each other is acceptable logically, or as a matter of public policy. The first amendment cannot be interpreted in any fashion that makes it self-contradictory. Therefore, if the separation of church and state interpretation ever causes the establishment clause to contradict the free speech clause or the free exercise clause, then the separation of church and state is a bad interpretation of the establishment clause.22 David O’Brien argues that there is an inherent tension between the establishment clause and the free exercise clause.23 Because the first amendment can never be interpreted in a way that makes it contradict itself, the “tension” claim is either meaningless or false. Either way, it does not help the separation interpretation. The Court held in Van Orden v. Perry that it is constitutional to display the Ten Commandments in a state park.24 However, in McCreary v. American Civil Liberties Union, the Court held that it is unconstitutional to display the Ten Commandments in front of courthouses owned by a state government.25 The problem with these two rulings holding simultaneously is that in both cases the same government with the same personnel, the same tax revenue, and the same constitutional restraints is endorsing a particular religious message in both cases. So it is illogical for the Court to reach opposite conclusions in both cases as it has. Noah Feldman argues that the purpose of the establishment clause was to protect liberty of conscience.26 There are two problems with this interpretation. First, in the eighteenth century 22 Esbeck. 11-12. 23 David M. O’Brien, Constitutional Lawand PoliticsVolume2: Civil Rights and Civil Liberties,8th edition,Page 735. 24 Van Orden V. Perry. 25 McCreary v. ACLU. 26 Noah Feldman, Intellectual Originsof the EstablishmentClause,NYU Law Review, 405.
  • 8. 8 it was generally accepted that the establishment clause protected state established churches from interference from the federal government.27 Claiming that the establishment clause protected liberty of conscience while at the same time guaranteeing the right of state governments to enforce the religious beliefs of one group against another group is counterintuitive at best and contradictory at worst. The second problem, as Stephen Feldman points out, is that when the Bill of Rights was ratified, people in America understood free exercise of religion and liberty of conscience to be synonymous.28 So interpreting the establishment clause to be a protection of liberty of conscience would render the free exercise clause redundant, which is unacceptable. Ira C. Lupo argues that the establishment clause and the free exercise law read together should be interpreted to protect equal religious liberty.29 Lupo defines equal religious liberty as formal equality, that is, equality before the law rather than equality in reality. This would imply that religion cannot be the basis of any legal classification, but aid can be given to religious organizations so long as their religious status is not the reason for the aid.30 31 This position is appealing from a public policy perspective. It prevents religious discrimination without requiring the state to deprive religious organizations of basic social services like police and fire protection. However, it is just as ahistorical as the separation theory. As Stephen Feldman argues, the majority of Americans, including the Founders, understood the right of liberty of conscience and, therefore free exercise to only extend to Protestant Christians.32 Therefore, the literate adults of the time in which the Bill of Rights was written and ratified would have never understood the 27 Dierenfield,page 12. 28 Stephen M. Feldman, PleaseDon’t Wish me a Merry Christmas:A Critical History of The Separation of Church and State, New York University Press,New York and London, 1997, 3708. 29 Ira C. Lupo., Reconstructing the EstablishmentClause:The Caseagainst Discretionary Accommodation of Religion.University of PennsylvaniaLawReview Vol. 140, No. 2 (Dec., 1991), Page 558. 30 Lupo, 581. 31 Lupo, 588. 32 Stephen Feldman. 3584-3605.
  • 9. 9 establishment clause, the free exercise clause, or both together to guarantee equal religious liberty between people of all faiths. Thomas J. Curry argues that in eighteenth century America no one had a coherent definition of the term “establishment of religion” at all. Rather, he argues that the term “establishment” only referred to a vague image of religious tyranny.33 He argues that Americans did not actually distinguish between the establishment of one religion over all others and non- preferential aid to all religions under the same terms.34 Those who argued against general assessments like that proposed in Virginia argued that they were not non-preferential at all and were merely a ruse to reinforce Anglican dominance.35 The defenders of the religious regimes that actually had direct subsidies to all Protestant churches, like Massachusetts, argued that they were not established churches at all.36 Curry argues that the first Congress was expounding general principles rather than solving concrete problems with the Bill of Rights.37 He argues that the principle behind both religion clauses was that the state has no competence in religious matter and that the founding generation left it to future generations to deduce and infer the implications of that principle.38 The problem with this interpretation is that if the term “establishment of religion” did not have a coherent definition when the first amendment was written, then there is no clear way to deduce and infer what principles it was trying to express. More importantly, the first Congress did not follow the principle that the government has no competency in religion. As stated above, the first Congress did pass laws that took cognizance of 33 Thomas J. Curry, The FirstFreedoms: Church and State in America to the Passageof the 1st amendment, Oxford University Press,1986, 211. 34 Curry, 209. 35 Curry, 210. 36 Curry, 213. 37 Curry, 205. 38 Curry, 221.
  • 10. 10 religion such as land grants to mission societies and hiring congressional chaplains. Curry argues that this means that the founding generation did not live up to their own principles.39 However, actions speak louder than words. Principle and practice are conceptually distinct. However, if there is a conflict between the principles that someone claims to espouse and what they actually do, then what they actually do should be considered the measure of their beliefs. If someone does not live up to their principles in situations where they are capable of living up to them, then the simplest conclusion is that they do not actually believe in those principles at all. If the first Congress did take cognizance of religion in their terms, then they did not actually believe that they held no competence in religious affairs. The Supreme Court incorporated the establishment clause against the states in 1947 in the case of Everson v Board of Education.40 So the meaning of the establishment clause needs to be understood at least in part by what it means when applied against the states. Carl Esbeck argues that there is no logical way to incorporate the establishment clause and thereby render it enforceable against the states. He further argues that the clause contains inherent federalism, that is, inherent protection for the powers of the several states, which the Court willfully ignored in Everson.41 As Frederick Mark Gedicks declares, the three standard arguments against incorporating the establishment clause are: 1. the authors of the Bill of Rights only intended for it to apply to the federal government, not to the states. So it cannot be logically interpreted to apply against the states. 2. It does not protect an individual right, so it cannot be a component of ordered liberty enforceable via the due process clause. 3. The failure of the Blaine amendment in 1875 shows that the authors of the fourteenth amendment did not understand it to render the 39 Curry, 221. 40 Everson v. Board of Education. 41 Esbeck, 25-26.
  • 11. 11 establishment clause enforceable against the states.42 As Gedicks argues, the logical and textual problems with incorporating the establishment clause can be overcome by taking Hohfeldian relationships into account. A disability on party A to do X necessarily provides party B with an immunity from any effects of X when done by A.43 Therefore, any disability that the Constitution imposes on the federal government necessarily grants an immunity against federal action to both the states and the citizenry.44 Thus the establishment clause, in imposing a disability on Congress by preventing it from legislating on establishments of religion, also grants an immunity to federal action concerning establishments of religion to individuals.45 All that incorporation requires logically is extending the individual immunity to apply against the state governments. This can be accomplished by interpreting the privileges and immunities clause to include the immunity against action concerning religion held by individuals through the establishment clause.46 The proposition and failure of the Blaine amendment is not inconsistent with the fourteenth amendment having already incorporated the establishment clause to apply against the several states. The purpose of the Blaine amendment was not to incorporate the establishment clause to render it enforceable against the states, but rather to prevent catholic schools from receiving public funds.47 The opponents of the Blaine amendment in Congress argued that the establishment clause and the free exercise clause were already enforceable against the states.48 The Blaine amendment failed not because the establishment clause was not already enforceable against the states, but because it was already enforceable against the states. 42 FrederickMark Gedicks, Incorporationof the EstablishmentClause Againstthe States:A Logical, Textual,andHistorical Account, IndianaLaw Journal,Vol.88:669, 683-689. 43 Gedicks,692-693. 44 Gedicks,694-696. 45 Gedicks,700-701. 46 Gedicks,708. 47 Lash, 1147. 48 Lash, 1150.
  • 12. 12 The original purpose of the establishment clause was to impose two restrictions on Congress, one to prevent Congress from establishing a national church and one to prevent Congress from interfering with state establishments.49 As Kurt T. Lash argues, the establishment clause was in part written to protect state established churches from the new federal government, and everyone involved in drafting it agreed that it had this effect.50 In his Commentaries on the Constitution, Joseph Story echoed this idea that the federal government had no power over religion, but state governments did.51 The Supreme Court accepted this interpretation in 1833 in upholding a New Orleans city ordinance that banned open casket funerals.52 This evidence suggests that the establishment clause was never intended to protect an individual right, which renders its incorporation questionable from an originalist perspective at best and impossible at worst. However, if the authors of the fourteenth amendment understood the establishment clause to protect an individual right and intended to render their interpretation of it enforceable against the states rather than the original meaning, then incorporation ironically makes sense from an originalist perspective.53 The framers of the fourteenth amendment did intend for it to render all provisions in the first eight amendments to the Constitution, including the establishment clause, enforceable against the states.54 John Bingham, the principle author of the first section of the fourteenth amendment, which contains the privileges and immunities clause, explicitly stated that the privileges and immunities clause by itself rendered the Bill of Rights enforceable against the states.55 Jacob Howard, the floor manager for the debate over passing the fourteenth 49 Gedicks,703. 50 Kurt T. Lash, "The Second Adoption of the EstablishmentClause:The Riseof the Non-Establishment Principle," Loyola Law School Los Angeles, Arizona State Law Journal 1995,1090-1091. 51 Lash, 1094-1095. 52 Lash, 1096. 53 Lash, 1099-1100. 54 Gedicks,714. 55 Gedicks,716-717.
  • 13. 13 amendment, introduced it by declaring that it would render the first eight amendments of the constitution enforceable against the states. More importantly, no member of the House or Senate disputed this interpretation.56 Therefore, incorporating the establishment clause to render it enforceable against the states is both logically and historically sound. In summary, attempts to read broad principles, such as “separation of church and state” and “no aid to religion” into the establishment clause for the sake of public policy considerations have produced inconsistent and useless jurisprudence. The only sound interpretation of the establishment clause is that it prevents the federal government from establishing an official church and, when incorporated via the fourteenth amendment, prevents state governments from doing the same. This narrow interpretation is easier to reconcile with the historical record and easier to put into practice. 56 Gedicks,718.
  • 14. 14 Bibliography Curry, Thomas J. The First Freedoms: Church and State in America to the Passage of the First Amendment. Oxford University Press. New York Oxford. 1986. Dierenfield, Bruce J. The Battle over School Prayer: Howe Engel v. Vitale Changed America. University Press of Kansas 2007. Esbeck, Carl H. “The Establishment Clause as a Structural Restraint on Governmental Power.” Iowa Law Review. 1998. Feldman, Noah. “The Intellectual Origins of the Establishment Clause.” N.Y.U. Law Review. May 2002. Feldman, Stephen M. Please Don’t Wish Me A Merry Christmas. New York University Press. New York and London. 1997. Fisher, Louis. Religious Liberty In America: Political Safeguards. University Press of Kansas. 2002. Gedicks, Frederick Mark. “Incorporation of the Establishment Clause against the States: A Logical, Textual, and Historical Account.” Indiana Law Journal. Vol. 88:669 2013. Hamburger, Philip. Seperation of Church and State. Harvard University Press. Cambridge, Massachussets. London, England. 2002. “Law and Religion: A Critical Anthology.” Ed. Stephen M. Feldman. New York University Press. New York and London. 2000. Lash, Kurt T. “The Second Adoption of the Establishment Clause: The Rise of the Non- Establishment Principle.” Arizona State Law Journal. 1995. Lupo, Ira C. “Reconstructing the Establishment Clause: The Case against Discretionary Accommodation of Religion.” University of Pennsylvania Law Review. 40:2 (Dec. 1991). pp. 555-612 O’Brien, David M. Constitutional Law and Politics Volume 2: Civil Rights and Civil Liberties 8th edition. W. W. Norton and Company. New York. 2011. Paulson, Michael A. “Religion, Equality, and the Constitution: An Equal Protection Approach to Establishment Clause Adjudication.” Notre Dame Law Review: Vol. 61:311. 1986.