Establishment Clause

Constitutional Scholar, Rob Natelson, prepared a very cogent explanation of the Establishment Clause of the US Constitution. Since I could not find it online, he kindly allowed me to reprint it here in its entirety:

The True History of the Establishment Clause Could Reduce Confusion in the Religion Cases

By Rob Natelson*
* Rob Natelson teaches constitutional law at the University of Montana. His article on the Establishment Clause will be published early next year by William and Mary Bill of Rights Journal.
* * * *
The Supreme Court’s Ten Commandments cases came out much the way similar cases have been coming out for years: confusing.

In Van Orden v. Perry, the justices voted 5-4 to uphold a courthouse display of the commandments. In McCreary County v. ACLU, the justices voted 5-4 to strike down a courthouse display of the commandments.

The Establishment Clause of the First Amendment to the U.S. Constitution says that “Congress shall make no law respecting an establishment of religion.” Although by its wording this provision applies only to Congress, the Supreme Court has held that it also constrains state governments.

Over the years, prominent jurists have applied at least five different interpretations of the Establishment Clause. At one extreme is the view of the great 19th century Supreme Court Justice Joseph Story, who believed the Founders had created a Christian nation, where government could and should support Christianity in a nondenominational way. At the other extreme is the expressed view of some current justices that the Founders erected a “wall of separation” between religion and state.

Although advocates of both views appeal to history for support, historical scholarship has pretty well discredited the claims of both. One indication of this is that in the latest cases, justices who previously supported “strict separation” edged toward the more moderate view that the Establishment Clause requires only that the government be neutral toward religion.

One of the staunchest defenders of “neutrality” has been retiring Justice Sandra Day O’Connor. She argues that government must remain neutral not only among religious sects, but also between religion and irreligion. In practice, however, neutrality between religion and irreligion has been hard to apply. Further, it is at odds with the history of the Establishment Clause, because the same Founders who adopted that Clause also arranged for government to favor religion in various ways.

A fourth approach to the Establishment Clause, supported by Justice Scalia and others, is called the accommodationist view, for it “accommodates” American traditions in public life while forbidding coercion of dissenters. However, the historical record suggests hat the Establishment Clause means more than this.

For some time, a handful of scholars have argued that none of these views really captures the meaning of the Establishment Clause. These “nonpreferentialists” maintain that under the First Amendment government may support and promote religion over irreligion so long as it does not favor some religions or denominations over others. They argue that atheists have no ground for complaining about “under God” in the Pledge of Allegiance or the Ten Commandments on the courthouse lawn, and that if some religious groups erect monuments on public property, other groups cannot complain if they get the same opportunity.

Which, if any, of these views is correct? In the past, most historians have tried to answer that by focusing on the drafting and adoption history of the First Amendment. The trouble is that First Amendment history, read in isolation, is inconclusive.

However, we know that First Amendment was drafted to comply with an earlier gentleman’s agreement reached during the debate over the Constitution itself. Could the debate over the Constitution itself shed light on the meaning of the Establishment Clause adopted shortly thereafter?

Here’s what I learned from my research on the subject:

* Although some Founders wanted an official preference for Christianity, most were persuaded to the contrary.
* But almost everyone wanted government to actively foster religion in general, largely for its moral benefits.
* So the basic constitutional settlement was “nonpreferentialist” – favoring religion over nonreligion, while remaining neutral among denominations. Thus, the Constitution’s requirement that state and federal officers take oaths disqualified atheists from office because under then-prevailing law only believers could take oaths. Correspondingly, the ban on religious tests prevented discrimination among theists.
* Similarly, the First Amendment’s protection for “free exercise” of religion protected all theists – but only theists. The basic justification for free exercise was that one must devote his conscience to God. People who did not do so had no claim to free exercise.
* During the ratification debates of 1788-89, it became clear that although the proposed Constitution did not grant the federal government explicit power over religion, it did grant other powers that Congress could use to favor particular denominations. For example, Congress might subsidize Christianity in the District of Columbia.

The Establishment Clause prevented this from happening by barring favoritism for particular religions, while still allowing the federal government to promote religion generally.
An interesting side note is how the Constitution was received by America’s Jewish community. Jews fulsomely welcomed it, because it went far toward admitting non-Christian theists to full American citizenship. Eyewitness Benjamin Rush described a parade held in Philadelphia to celebrate the Constitution’s adoption:

“The Rabbi of the Jews, locked in the arms of two ministers of the gospel, was a most delightful sight. There could not have been a more happy emblem contrived, of that section of the new constitution, which opens all its power and offices alike, not only to every sect of christians [sic], but to worthy men of every religion.”

Note, however, that Rush did not add “men of no religion.”

Understanding the Constitution as nonpreferentialist explains the wording and history of the document better than any other theory. In fact, comments in the Ten Commandments cases suggest that some justices are moving toward nonpreferentialism. If a majority adopt this theory, it would support the validity of the words “under God” in the Pledge of Allegiance and other general expressions of official theism.