By Jack McAdoo

Explore the Establishment Clause in American law, examining how it shapes the role of religion in government, Supreme Court cases, and the separation of church and state. America’s early settlers held diverse religious beliefs, with Puritans primarily in New England, Anglicans in the South, Quakers and Lutherans largely in Pennsylvania, Catholics mainly in Maryland, and Presbyterians in the middle colonies. Jewish congregations also emerged in five cities. In colonial times, the Church of England was the legally established church in the southern colonies, while Puritan churches had similar authority in much of New England. In these regions, colonial officials controlled clergy appointments and imposed religious taxes, with non-compliance often leading to punishment. Delaware, New Jersey, Pennsylvania, Rhode Island, and parts of New York, however, had no official church.

After gaining independence, Americans widely agreed that there should be no national church. This consensus was reflected in the First Amendment’s Establishment Clause, primarily crafted by James Madison, which prohibited Congress from establishing a religion. By 1833, all states had removed official churches, and in the 1940s, the Supreme Court extended this disestablishment principle to the states through the Fourteenth Amendment.

Most legal experts agree that forcing citizens to attend or financially support religious institutions would violate the Establishment Clause, as would government involvement in choosing clergy or religious doctrine. Similarly, religious entities exercising governmental power or the government providing unequal benefits to religious groups without a secular reason would be deemed unconstitutional. However, the clause’s interpretation remains controversial, with many Supreme Court cases resulting in narrow decisions.

The Lemon Test

In the 1971 Lemon v. Kurtzman case, the Supreme Court defined a three-part test to assess if government practices violate the Establishment Clause: the law must have a secular purpose, its primary effect should neither promote nor hinder religion, and it should avoid excessive government entanglement with religion. While this “Lemon test” has been contentious and sometimes bypassed by the Court, lower courts are still required to use it. For some cases, the Court has developed alternative, more specific tests.

Funding Religious Institutions

A central debate regarding the Establishment Clause is whether government funding should be neutral toward religious and non-religious institutions or should avoid supporting religious doctrine with taxpayer money. Initially, the Court leaned toward neutrality but later adopted a stricter stance against funding religious aspects. Recently, it has returned to a neutral approach, allowing aid when allocated by private choice. Cases like Zelman v. Simmons-Harris (2002) supported aid to religious entities when selected by individuals, and Rosenberger v. University of Virginia (1995) upheld that excluding religious entities from aid programs is unconstitutional if their activities align with program requirements.

Government-Sponsored Prayer

The Court has ruled that public schools cannot lead prayers or Bible readings, even if voluntary, in decisions like Engel v. Vitale (1962) and Abington School District v. Schempp (1963). This ban extends to school graduation ceremonies and sports events. In less coercive settings involving adults, however, the Court has permitted prayer, as in Marsh v. Chambers (1983), which upheld legislative prayer based on historical tradition, and Town of Greece v. Galloway (2014), which permitted opening prayers at town meetings that welcomed all faiths.

Religious Accommodations

Various laws exempt religious groups from generally applicable laws when they conflict with religious beliefs, such as military draft exemptions, dietary provisions for prisoners, and the use of certain substances in ceremonies. The Supreme Court has rarely ruled on these accommodations but has generally upheld them, as in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. (2012), which protected a religious organization’s employment practices. Federal laws like the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA) support accommodations when laws restrict religious practices. The Court has debated these laws, such as in Burwell v. Hobby Lobby (2014), which permitted certain for-profit entities to opt out of contraceptive coverage based on religious beliefs.

Religious Symbols in Government Spaces

Cases about government displays of religious symbols, like the Ten Commandments or nativity scenes, are among the most debated under the Establishment Clause. The “endorsement test” often applies here, examining whether a reasonable observer would perceive the display as government endorsement of religion. This test has led to mixed rulings: in Lynch v. Donnelly (1984), the Court allowed a nativity scene displayed alongside secular decorations, while in County of Allegheny v. ACLU (1989), it prohibited an isolated nativity display in a courthouse. In cases involving the Ten Commandments, the Court has ruled both ways depending on context, as seen in McCreary County v. ACLU (2005) and Van Orden v. Perry (2005), with just one Justice concurring in both.

Overall, the Establishment Clause shapes legal resolutions of religious roles in public life, especially as American society grows increasingly diverse. https://constitution.congress.gov/browse/amendment-1/