The Establishment Clause: Definition & Cases

Instructor: Mark Pearcy
The 1st Amendment guarantees not one, but two rights about religion in U.S. society--the 'free exercise clause' and the 'establishment clause.' The latter establishes a 'wall of separation' between church and state; though over the last two centuries and a variety of court cases, the wall has become a more porous barrier.

The 1st Amendment Rights

If you ask an American about his or her 'rights,' they'll probably have some pretty specific principles in mind. Most of us understand that 'freedom,' by itself is pretty generic. The freedom to do certain things--or to be free of other things--is what we have in mind when we talk about 'rights.' Thus, we may assert our right to own a gun (the 2nd Amendment, which is a right to do something), or to be free from 'cruel and unusual punishments' (the 8th Amendment, a right to not have something unpleasant done to us).

The 1st Amendment is unique in that it contains a significant bunch of rights, all in one paragraph: the right to free speech, the right to free assembly, the right to 'petition the Government for a redress of grievances.' It's odd, then, that people often forget that the 1st Amendment begins with this sentence: 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.'

That line, of course, is the basis for what Americans call freedom of religion; and in reality, it's not just one overall right, but two very specific ideas of what it means to be free. On the one hand, the right to be free from something; and on the other, the right to be free to do something (or nothing). This is what the Establishment Clause of the 1st Amendment to the U.S. Constitution is about.

What is the Establishment Clause?

The 1st Amendment's section on religion has, as mentioned above, two sections. The second section is referred to as the Free Exercise Clause, since that's exactly what it guarantees: you are allowed to practice any kind of religion you want, without interference from the government. This is what we might call a positive right, since it allows you to do something, rather than keeping you from doing it. Like all rights, of course, this comes with some conditions, among them being that the exercise of your religion can't interfere with or prohibit the rights of other individuals.

The Establishment Clauseis a little different, and more encompassing. This is a negative right, since it prohibits something rather than entitles it. Under this clause, the U.S. government is prohibited from establishing one religion above others. This is usually interpreted to mean that the Founding Fathers were trying to avoid the imposition of a 'state religion.' Just like the Free Exercise Clause, though, there are times when it seems that religion and government can't get out of each other's way. Fortunately, the Constitution includes a process for resolving these questions: the U.S. Supreme Court.

Religion and Government: Case by Case

In 1802, Thomas Jefferson wrote a letter to a religious minority group, called the Danbury Baptists, and in the letter, he said that the 1st Amendment erected 'a wall of separation' between religion and government. The Supreme Court used this phrase, 'a wall of separation,' in the first major case about the right of religion, Reynolds v. United States. (1878). In this case, the Court established the general rule regarding the Free Exercise Clause (worship how you want, so long as you don't interfere with others' rights).

The Constitution creates a federal government, and it was assumed, at first, that the rights described in the Bill of Rights applied first, and only, to that level of government. Put another way, the federal government might guarantee 'a wall of separation' between church and states, but the states themselves were under no such restriction. So states frequently would pass laws about religion, its exercise and establishment, up until 1947, with the case of Everson v. Board of Education, when the Supreme Court held that the religious rights of the U.S. Constitution also applied to states. This was called incorporation (where federal rights are passed down, or 'incorporated,' as obligations of state governments as well).

Those cases really just laid the groundwork for the heavy lifting the Court was going to do on the Establishment Clause. In 1948, in McCollum v. Board of Education, the Court ruled that the invitation of religious instructors into public schools, to provide optional lessons in religion, was a violation of the 1st Amendment (since a public school is a government-funded institution).

In 1952, in the case of Zorach v. Clauson, the Court upheld the practice of allowing students 'release time' to leave schools to attend religious programs. These cases showed that the Court was starting to view the 'wall' between church and state a something a little more transparent, where some movement between the spheres was acceptable.

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