The Establishment Clause

Congress shall make no law respecting an establishment of religion. . . .

—Stephanie Barclay

Introduction

Scholars generally agree that the Framers viewed the eighteenth-century Church of England as a foil for their vision of the relationship between church and the federal government.¹ The Establishment Clause reflects this historical sentiment. The Framers, however, did not believe that a public role for religion was an evil in itself. Rather, historical practice surrounding ratification of the First Amendment suggests that as long as government action did not reflect certain problematic hallmarks of government action that established churches, the role of religion in public life was often a welcome and important aspect of the early Republic.

History Before 1787

Before the American Revolution, the Church of England had some day-to-day discretion over religious activities, but the state exercised significant control over the Church’s doctrines and personnel, along with participation in various religious activities of the Church.² For instance, attendance at Anglican services was mandatory, with nonattendance resulting in fines, and the payment of some tithes were mandatory as a special form of tax.³ The Church also received preferential public financial support through mechanisms like land grants.⁴ Non-members were not allowed to vote or hold public office, and a religious test oath was used to enforce this restriction.⁵

In the colonies, the Church of England was officially established by law in the five southern colonies of Georgia, North Carolina, South Carolina, Virginia, and Maryland.⁶ It thus remained the dominant religious institution in many of the colonies, but the restrictions these established legal regimes imposed on citizens varied by colony. The laws related to an established church were not found in one statute, but instead arose from “a web of legislation, common law, and longstanding practice.”⁷ Professor Michael McConnell has argued that the six historic hallmarks of an establishment included (i) control of church doctrine or leadership; (ii) compulsory religious exercise; (iii) preferential financial support of the established church; (iv) prohibition of dissenting worship or punishments for members of dissenting faiths; (v) use of church institutions for public functions, often in a monopoly capacity; and (vi) restriction of political offices to members of the established church.⁸

Following the Revolution, many newly independent states retained some of these laws, policies, or practices, but not without disagreement. In Virginia, Patrick Henry proposed a tax that would have permitted citizens to choose a Christian church to support or to contribute to a general fund that would be distributed by the state legislature.⁹ James Madison vehemently opposed Henry’s bill and responded with his famous Memorial and Remonstrance Against Religious Assessments.¹⁰ Madison argued that Virginia ought not to pay the salaries of the Anglican clergy. “[R]eligious taxes were equivalent to establishment not because they forced some people to pay for religion they did not like but because they effectively forced everyone to engage in a religious observance—namely, tithing.”¹¹ According to Professor Mark Storslee, “the claim about coerced religious observance [of tithing] seems to have defined the scope of that objection” related to funding. Storslee adds that this coercion “offers a plausible explanation as to why Madison and others who opposed church taxes did not oppose . . . the state’s repeated funding of religious schools.”¹² In other words, the assessment prompted establishment concerns not because it gave funds to religious entities, but because it coerced public participation in a specific religious observance.

Madison raised a second objection to Henry’s bill. He questioned why certain groups such as the Quakers and Mennonites should be granted “peculiar exemptions” to the assessments and urged these groups not to be tempted by the offer of privileges to some religious denominations over others.¹³ Ultimately, the Remonstrance led to the defeat of Henry’s bill and inspired Thomas Jefferson’s Statute on Religious Freedom.¹⁴

Drafting the Establishment Clause

The Constitutional Convention did consider religion, but it was not a major topic of discussion. Ultimately, the text of the Constitution referred to religion only in Article VI, which proscribes religious tests for public office.¹⁵ (See Essay No. 156.) However, Anti-Federalists like Centinel and Federal Farmer objected to ratification because the Constitution contained no protections for religious belief or worship.¹⁶ Federal Farmer described as an “unalienable or fundamental right[]” the proposition that “[n]o man, demeaning himself peaceably, shall be molested on account of his religion or mode of worship.”¹⁷ Five states proposed religious freedom amendments to the new Constitution.¹⁸

During the First Congress, Representative James Madison proposed the following amendment regarding the establishment of religion: “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.”¹⁹ The amendment was “ordered to be referred to a Committee of the whole.”²⁰ Peter Sylvester of New York was concerned that the clause might be interpreted “to abolish religion altogether,” and Roger Sherman of Connecticut thought the clause was “altogether unnecessary” because Congress “had no authority . . . to make religious establishments.”²¹ Madison understood the proposed amendment to mean “that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.”²² Benjamin Huntington of Connecticut feared that the words of the amendment “might be taken in such latitude as to be extremely hurtful to the cause of religion” and said he desired an amendment that would secure “free exercise of the rights of religion” without “patroniz[ing] those who professed no religion at all.”²³

Madison then suggested adding “national” before religion to prevent the establishment of one sect or prevent two from combining to establish a national religion “to which they would compel others to conform.”²⁴ Elbridge Gerry of Massachusetts raised a semantical objection, observing that the Anti-Federalists “were in favor of a Federal Government, and the others were in favor of a national one.”²⁵ Madison promptly withdrew his motion. Samuel Livermore of Massachusetts would have revised the amendment to read, “Congress shall make no laws touching religion, or infringing the rights of conscience.”²⁶ The House agreed to this amendment and then, five days later, adopted a motion by Fisher Ames of Massachusetts to revise the text so that it now read, “Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.”²⁷

The Senate received a slightly different version from the House: “Congress shall make no law establishing Religion, or prohibiting the free exercise thereof; nor shall the rights of conscience be infringed.”²⁸ The Senate considered various proposals to change this version. One prohibited the establishment of “one religious sect or society in preference to others,” and another protected “rights of conscience.”²⁹ Both were rejected. Ultimately, the Senate settled on the following wording: “Congress shall make no law establishing religion, or prohibiting the free exercise thereof.”³⁰ Then, six days later, it changed “religion” to “articles of faith or mode of worship” and added other freedoms that are now found in the First Amendment. The text now provided that “Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion, or abridging the freedom of speech, or the press, or the right of the people peaceably to assemble, and petition the government for the redress of grievances.”³¹

The Senate and House approved the proposal.³² A conference committee was appointed to resolve the differences between their respective versions. The committee returned with the final version of the amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and petition the government for a redress of grievances.”³³ The amendment was approved by both houses and sent to the states for ratification on September 25, 1789.

Ratifying the Establishment Clause

The state ratification debates shed little direct light on the original meaning of the Establishment Clause. However, there was a general desire to avoid an official federal church and prevent the federal government from breaking up state-established religions.³⁴ Ultimately, the First Amendment was ratified on December 15, 1791. Professor Carl Esbeck has observed that “[t]he absence of popular pushback in the states to ratification of the [First Amendment] is consistent with the understanding that the American public viewed the text as prohibiting any federal involvement in an establishment of religion, be it at the state or federal level.”³⁵

Early Practice

The U.S. Supreme Court has observed that the United States has an “unbroken history of official acknowledgment by all three branches of government of the role of religion in American life.”³⁶ In April and May 1789, shortly after the inaugural session of Congress, both the House of Representatives and the Senate elected official chaplains to offer prayer.³⁷ On September 22, 1789, Congress passed a statute providing for the payment of various congressional officials, including chaplains.³⁸

This practice continued a historical tradition dating back to before independence. In 1774, the First Continental Congress adopted the “procedure of opening its sessions with a prayer offered by a paid chaplain.”³⁹ In 1775, the Continental Congress approved military chaplains.⁴⁰ The activities of these government-paid chaplains were accepted under the new Constitution. The First Congress, for example, approved the Bill of Rights only three days after enacting the statute providing for the payment of congressional chaplains.⁴¹

There is also no record that anyone at the Founding viewed the public display of religious symbols as constituting a religious establishment.⁴² To the contrary, such symbols were often viewed as unproblematic and even valuable. For example, in 1776, when the seal for the new nation was being designed, Benjamin Franklin and Thomas Jefferson proposed a biblical scene involving Moses.⁴³ The seal ultimately adopted by Congress in 1782 features “the Eye of Providence” above the motto Annuit Coeptis: “He [God] has favored our undertakings.”⁴⁴ In 1789, President Washington’s Thanksgiving Day Proclamation referred to “a day of public thanksgiving and prayer” and the role of a “Supreme Being” in “the foundations and successes of our young Nation.”⁴⁵ As President, Jefferson allowed various religious groups to use federal government buildings for weekly worship services.⁴⁶

There also was significant government funding of religious institutions. In Maryland, a 1776 declaration of rights prohibited the use of taxes to support any particular religion, but the law did permit “a general and equal tax for the support of the [C]hristian religion.”⁴⁷ When the legislature attempted to enact such a general tax in 1785, some contemporary figures argued that an assessment for the purpose of financing worship “amount[ed] to a coerced religious observance.”⁴⁸ However, such concerns were not raised in opposition to Maryland’s financial support of religious schools throughout the early 1800s.

This practice suggests that historical opposition in Maryland to a general assessment was motivated primarily by a specific opposition to compelled tithes—forcing individuals to contribute to the support of a religious congregation.⁴⁹ Conversely, where the government was financing a public good such as education, such concerns were mitigated or altogether nonexistent. This conclusion is supported by evidence from other southern states. For example, North Carolina and South Carolina continued to provide support to religious schools even after passing new state constitutions that put an end to church taxes.⁵⁰ Similarly, Georgia eventually prohibited any “‘tith[e]s, taxes, or any other rates’ in support of religious worship” while continuing its “support for religious academies.”⁵¹

The federal government, even though it was bound by the Establishment Clause, also continued to provide government funds for religious schools.⁵² In 1804, President Jefferson assured Catholic nuns in New Orleans, part of the newly acquired Louisiana Purchase, that “the charitable objects of your institution . . . cannot fail to ensure it the patronage of the government it is under.”⁵³ The Jefferson Administration also continued the policy––started under President Washington––of funding priests for Indian tribes.⁵⁴ In 1812, the District of Columbia began to use revenues from its education tax to support religious schools.⁵⁵ Such government aid seems not to have been controversial at the time.⁵⁶ This early history suggests that there was broad cooperation between religion and government.⁵⁷

Judicial Precedent

The Supreme Court has long “looked primarily to historical practices and analogues to guide its analysis” of the Establishment Clause.⁵⁸ However, Lemon v. Kurtzman (1971) adopted a new history-free tripartite test and “interrupted this long line of precedents” based on history.⁵⁹ Over time, however, Lemon proved to be an exception rather than the rule in Establishment Clause analysis.⁶⁰

Kennedy v. Bremerton (2022) cemented this shift away from Lemon. The Court unequivocally stated that “the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’”⁶¹ Thus, Lemon was no longer controlling,⁶² but what replaced it?

The Court explained in Kennedy that government action that coerced individuals to participate in a religious exercise on pain of legal penalty “was among the foremost hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment.”⁶³ The Court did not say that coercion, in the abstract, was the sine qua non of historical religious establishments.

To underscore that point, the Court concluded its sentence about coercion with a footnote citing Michael McConnell’s scholarship that identifies multiple important historical hallmarks of established churches. This footnote also cites approvingly to Justice Neil Gorsuch’s concurring opinion from the same term, which summarized and provided some doctrinal guidance relevant to the various historical hallmarks.⁶⁴

Specifically, Justice Gorsuch’s concurrence stated that beyond a formal declaration that a religious denomination was in fact the established church, it seems that Founding-era religious establishments often bore certain other telling traits. The government (1) controlled the doctrine and personnel of the established church; (2) mandated attendance in the established church and punished people for failing to participate; (3) punished dissenting churches and individuals for their religious exercise; (4) restricted political participation by dissenters; (5) provided financial support for the established church, often in a way that preferred the established denomination over other churches; and (6) used the established church to carry out certain civil functions, often by giving it a monopoly over a specific function.⁶⁵

Thus, in future cases when the Court is identifying whether a government practice constitutes a violation of the Establishment Clause, it will likely look to whether, at a low level of abstraction, the challenged practice resembles one of these hallmarks in important respects. The Court also will likely apply different types of doctrinal tests, depending on the relevant historical hallmark.

The Kennedy Court also analyzed whether the government was mandating participation in a religious exercise and punishing those who fail to comply.⁶⁶ The Court emphasized that historically problematic coercion included “mak[ing] . . . religious observance[s] compulsory,” “coerc[ing] anyone to attend church,”⁶⁷ or otherwise “forc[ing] citizens to engage in ‘a formal religious exercise.’”⁶⁸ The Court found no coercion in the facts of Kennedy, where a football coach willingly ended his practice of post-game religious talks and locker room prayers with his team.⁶⁹

Kennedy also rejects the idea that the Establishment Clause and Free Exercise Clause are conceptually in “direct tension” with one another.⁷⁰ Instead, the Court conceives of these clauses as having complementary purposes. There will likely be wide swaths of activity that are protected by the Free Exercise Clause and not prohibited by the Establishment Clause, and vice versa. In some cases, there will be government action that both the Establishment Clause and the Free Exercise Clause together prohibit, speaking with one voice. One could view both clauses as working in tandem to decrease unjustified government control of religion, though from different vantage points.

Open Questions

• Which doctrinal tests will the Court adopt with respect to the various historical hallmarks of religious establishments?
• The Court has indicated that the ministerial exception is one area in which the Free Exercise Clause and Establishment Clause speak with one voice, but questions remain about other areas where this overlap occurs, including in the broader church autonomy context.

1. Stephanie H. Barclay, Brady Earley & Annika Boone, Original Meaning and the Establishment Clause: A Corpus Linguistics Analysis, 61 Ariz. L. Rev. 505, 521 (2019). ↩︎
2. Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2110 2133–38 (2003). ↩︎
3. Id. at 2144. ↩︎
4. Id. at 2146–51. ↩︎
5. Id. at 2176–81. ↩︎
6. Barclay et al., supra at 511. ↩︎
7. McConnell, supra at 2110–11. ↩︎
8. Id. at 2131. ↩︎
9. Patrick Henry, A Bill “Establishing a Provision for Teachers of the Christian Religion” (1784), in Michael W. McConnell, John H. Garvey & Thomas C. Berg, Religion and the Constitution 49–50 (3d ed. 2011). ↩︎
10. James Madison, Memorial and Remonstrance Against Religious Assessments (ca. June 20, 1785), https://perma.cc/VAA9-2KY4. ↩︎
11. Mark Storslee, Religious Accommodation, the Establishment Clause, and Third-Party Harm, 86 U. Chi. L. Rev. 871, 888 (2019). ↩︎
12. Mark Storslee, Church Taxes and the Original Understanding of the Establishment Clause, 169 U. Pa. L. Rev. 111, 129 (2020). ↩︎
13. Id. at 908. ↩︎
14. Act for Establishing Religious Freedom, January 16, 1786, https://perma.cc/6564-96PN. ↩︎
15. Gerard V. Bradley, The No Religious Test Clause and the Constitution of Religious Liberty: A Machine That Has Gone of Itself, 37 Case W. Rsrv. L. Rev. 674 (1987). ↩︎
16. 2 Storing 2.7.55; id. at 2.8.53. ↩︎
17. Id. at 2.8.86. ↩︎
18. Barclay et al., supra at 512. ↩︎
19. 1 Annals of Cong. 451 (1789). ↩︎
20. Id. at 468. ↩︎
21. Id. at 757. ↩︎
22. Id. at 758. ↩︎
23. Id. ↩︎
24. Id. ↩︎
25. Id. at 759. ↩︎
26. Id. ↩︎
27. Id. at 796. ↩︎
28. S. Jour., 1st Cong., 1st Sess. 63 (Aug. 25, 1789). ↩︎
29. Id. at 70 (Sept. 3, 1789). ↩︎
30. Id. ↩︎
31. Id. at 77 (Sept. 9, 1789). ↩︎
32. Id. ↩︎
33. Id. at 86 (Sept. 24, 1789). ↩︎
34. Barclay et al., supra at 515. ↩︎
35. Carl H. Esbeck, The Establishment Clause: Its Original Public Meaning and What We Can Learn from the Plain Text, 22 Fed. Soc’y Rev. 26, 33 (2021). ↩︎
36. Lynch v. Donnelly, 465 U.S. 668, 674 (1984). ↩︎
37. Ida A. Brudnick, Cong. Rsrch. Serv., R41807, House and Senate Chaplains: An Overview 1 (2011), https://perma.cc/KT7C-USDP. ↩︎
38. Marsh v. Chambers, 463 U.S. 783, 788 (1983); Christopher C. Lund, The Congressional Chaplaincies, 17 Wm. & Mary Bill Rts. J. 1171, 1184–85 (2009). ↩︎
39. Marsh, 463 U.S. at 787. ↩︎
40. In re England, 375 F.3d 1169, 1171 (2004); Richard D. Rosen, Katcoff v. Marsh at Twenty-Two: The Military Chaplaincy and the Separation of Church and State, 38 U. Tol. L. Rev. 1137, 1143 (2007). ↩︎
41. Michael W. McConnell, No More (Old) Symbol Cases, 2019 Cato Sup. Ct. Rev. 91, 109 (2018–19); Lund, supra at 1173. ↩︎
42. Shurtleff v. City of Bos., Mass., 596 U.S. 243, 287 (2022) (Gorsuch, J., concurring). ↩︎
43. James H. Hutson, Religion and the Founding of the American Republic 50–51 (1998). ↩︎
44. U.S. Dep’t of State, Bureau of Pub. Affairs, The Great Seal of the United States 4–6 (July 2003), https://perma.cc/8KGS-4GYC. ↩︎
45. Van Orden v. Perry, 545 U.S. 667, 686–87 (2005). ↩︎
46. Hutson, supra at 84–94. ↩︎
47. Maryland Const. of 1776, art. XXXIII; Storslee, Church Taxes, supra at 150–51. ↩︎
48. Id. at 151. ↩︎
49. Id. at 155. ↩︎
50. Id. at 155–56. ↩︎
51. Id. at 156. ↩︎
52. Id. at 164. ↩︎
53. Letter from Thomas Jefferson to the Ursuline Nuns of New Orleans (July 13, 1804), https://perma.cc/QBD8-MVTZ. ↩︎
54. Storslee, Church Taxes, supra at 168. ↩︎
55. Id. at 164–65. ↩︎
56. Id. at 166–67. ↩︎
57. Id. at 192. ↩︎
58. Shurtleff, 596 U.S. at 281 (Gorsuch, J., concurring); Everson v. Board of Education, 330 U.S. 1, 9–15 (1947); McGowan v. Maryland, 366 U.S. 420, 437–40 (1961); Torcaso v. Watkins, 367 U.S. 488, 490–91 (1961); Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 294 (1963); Walz v. Tax Comm’n of N.Y., 397 U.S. 644, 678 (1970); Stephanie H. Barclay, The Religion Clauses After Kennedy v. Bremerton School District, 108 Iowa L. Rev. 2097 (2023). ↩︎
59. Shurtleff, 596 U.S. at 282 (Gorsuch, J., concurring). ↩︎
60. Am. Legion v. Am. Humanist Ass’n, 588 U.S. 19, 68–71 (2019) (Kavanaugh, J., concurring). ↩︎
61. Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 535–36 (2022) (quoting Town of Greece v. Galloway, 572 U.S. 565, 576 (2014)). ↩︎
62. Barclay, The Religion Clauses, supra. ↩︎
63. Kennedy, 597 U.S. at 537 (emphasis added). ↩︎
64. Id. at 537 n.5. ↩︎
65. Id. ↩︎
66. Id. at 536–44. ↩︎
67. Id. at 536–37 (quoting Zorach v. Clauson, 343 U.S. 306, 314 (1952)). ↩︎
68. Id. at 537 (quoting Lee v. Weisman, 505 U.S. 577, 589 (1992)). ↩︎
69. J.A. at 70, 77, 170–72, Kennedy, 597 U.S. 507. ↩︎
70. Kennedy, 597 U.S. at 532–33. ↩︎