April 9, 2011


Understanding the First Amendment’s Religion Clauses (John Harmon McElroy, Spring 2011, Intercollegiate Review)

In 1791, there were fourteen states in the United States, the original thirteen having been joined by Vermont, and half had religious establishments. What connection is there between the First Amendment’s Establishment Clause (“Congress shall make no law respecting an establishment of religion”) and this fact that seven of the fourteen states had establishments of religion? Could the purpose of the Establishment Clause have been to prevent the federal government from interfering with those religious establishments? Were the two religion clauses—establishment and free-exercise—coordinate protections of the right of the states to regulate religious matters within their borders? And what, exactly, is “an establishment of religion”? Each of these questions bears on the Supreme Court’s reversal over the past half century of the First Amendment’s prohibition against federal intrusion into religious matters.

Let us first take up the question of what exactly a religious establishment is. In addressing this matter, one must understand that the Supreme Court’s ruling in 1962 in Engel v. Vitale—that a religious exercise in a public school represents an establishment of religion—redefined the meaning of a religious establishment. But it is even more important to understand that no court ruling can change the historical reality of what a religious establishment is. The Supreme Court possesses vast power, but that does not include the ability to rewrite history. The nature of religious establishments in the history of Western civilization is clear and cannot be altered by any court.

An establishment of religion is a declaration by a government, in a law, of a preference for one particular religion, which the law names. This declaration of a preference is substantial and not just nominal, because the establishment law grants the preferred religion some substantial benefit that government alone can confer. The establishment law confers the benefit on the identified religion only; the churches of other religions, and persons unaffiliated with any organized religion, are excluded from receiving it. Typically, the benefit bestowed is the privilege of receiving institutional support from public revenues or the privilege to vote and hold public office—sometimes a combination of both. No establishment of religion exists when a government treats the members of every faith equally, tolerates free, public expression of any religious faith, and enacts no establishment law bestowing a substantial governmental benefit on one religion to the exclusion of all others.

In 1791, New Hampshire, New Jersey, and South Carolina had establishment laws that benefited “the Protestant faith”; in Delaware and Maryland, where there were numerous Roman Catholics, establishment laws benefited “the Christian faith”; establishment laws in Connecticut and Massachusetts bestowed exclusive privileges on the Congregationalist Church. The churches representing the religions established through these state laws were all supported by donations of money from the public treasuries of the seven states that had privileged them as the preferred churches of their governments. Only Massachusetts and Connecticut, however, had what could be termed strong religious establishments, since the establishment laws in those states gave preference to just one church and made membership in it a qualification for voting and holding public office.

During the next forty-two years—that is, between 1791 and 1833—the religious establishments in Connecticut, Delaware, Maryland, Massachusetts, New Hampshire, New Jersey, and South Carolina were all abrogated by acts of state legislatures that revoked their establishment laws; no further establishment laws were ever enacted in the United States. Thus, it is a plain matter of historical record that since 1833 no establishment law has existed anywhere in the United States; hence, there have been no establishments of religion since that date.

Historically speaking, it is implausible to claim that personal expressions of religious belief—for example, voluntary participation in a group prayer or the silent prayer of an individual—could constitute a religious establishment just because they occur on public property with the approval of elected or lawfully appointed public officials. Yet that was what the Supreme Court held in its 1962 judgment in Engel and in its 1985 judgment in Wallace v. Jaffree. The former held unconstitutional voluntary participation in group prayer and the latter, individual silent prayer, in public schools when approved by school officials. In Engel v. Vitale the Supreme Court misconstrued “an establishment of religion” to mean the approval of religious exercises by public officials, even though their approval conferred no exclusive benefit on any religious congregation. In Engel, the Supreme Court moved from protecting religious exercises in public schools, under the First Amendment’s Free-Exercise Clause, to condemning them as religious establishments.

But before discussing how this reversal came about, the historical purpose of the First Amendment’s two religion clauses must be carefully examined, especially their relationship to each other. In this regard, we must first note the reason for the addition to the Constitution of the set of amendments known as the Bill of Rights, which includes the First Amendment. A set of amendments to protect the rights of individuals and states was repeatedly urged in 1787–88 during the debates in the state ratifying conventions. Alexander Hamilton stated in Federalist 84 that “the most considerable of the remaining objections” to ratification was that there was “no bill of rights” in the proposed Constitution. The promise by pro-ratification delegates to the state conventions (the “Federalists”) to add a Bill of Rights after ratification won over the states that feared that the authority being granted the new federal government would infringe upon existing rights. The most prominent Federalist of the 1780s, James Madison, “the Father of the Constitution,” duly drafted and introduced the promised Bill of Rights in the first session of the First Congress.

Yet Madison’s wording of the First Amendment’s Establishment Clause was significantly changed in what was finally approved by Congress and sent to the states for ratification. In attempting to understand the purpose of the Establishment Clause, we must examine that change.

The religion clauses for the First Amendment that Madison introduced in the House of Representatives read as follows: “The civil rights of none shall be abridged on account of religious belief or worship, [n]or shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, nor on any pretext, infringed.” This awkward wordiness was amended by a majority of his colleagues in the House, under the leadership of Fisher Ames of Massachusetts, to read: “Congress shall make no law establishing Religion, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.” The Senate then amended that language further to, “Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion.” All three of these statements had the evident aim of prohibiting Congress from enacting a law that would, in Madison’s words, establish “any national religion.” And despite their various styles and various degrees of specificity, all of them protected the free exercise of religious beliefs.

As with bills today, it was a conference committee that reconciled the House and Senate versions and produced the final language of the First Amendment that Congress sent to the states for ratification. Two members of this six-member committee, Oliver Ellsworth and Roger Sherman, were from Connecticut, a state with a strong religious establishment. The language of the conference committee’s final version kept the Free-Exercise Clause that both houses of Congress preferred to Madison’s diffuse wording but rephrased the Establishment Clause in a way that significantly broadened its frame of reference. That clause’s final wording (“Congress shall make no law respecting an establishment of religion”) succinctly prohibited Congress from both enacting an establishment law of its own and disturbing the establishment laws that then existed in half the states of the Union.

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Posted by at April 9, 2011 5:59 AM

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