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The Establishment Clause of the First Amendment to the United States Constitution states that:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"

Frequently, the "Establishment Clause" is used to refer to the entire clause referring to religion, but the term is more accurately used to refer to the first part of the clause. The second part of the clause is commonly referred to as the "Free Exercise" clause.

Traditionally, this has been interpreted as the prohibition of the establishment of a national religion by Congress or the preference of one religion over another. Prior to the enactment of the Fourteenth Amendment in 1868, the Supreme Court generally took the position that the substantive protections of the Bill of Rights did not apply to actions by state governments. Subsequently, under the Incorporation doctrine the Bill of Rights have been broadly applied to limit state and local government as well. For example, in the Board of Education of Kiryas Joel Village School District v. Grumet, Justice David Souter concluded that "government should not prefer one religion to another, or religion to irreligion." Critics of this interpretation argue that it effectively changes the Constitution in a way never contemplated by the founders. However, this is a controversial and evolving area of jurisprudence.

Financial assistance

The Supreme Court first considered the question of financial assistance to religious organizations in Bradfield v. Roberts (1899). The federal government had funded a hospital operated by a Roman Catholic institution. In that case, the Court ruled that the funding was to a secular organization—the hospital—and was therefore permissible.

In the twentieth century, however, the Supreme Court has more closely scrutinized government activity involving religious institutions. In Everson v. Board of Education (1947), the Supreme Court recognized the validity of a New Jersey statute funding student transportation to schools, whether parochial or not. Justice Hugo Black held,

The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between church and State."

Despite these stringent requirements, the New Jersey law was upheld, for it applied "to all its citizens without regard to their religious belief."

The Jefferson quotation cited in Black's opinion is from a letter which Jefferson wrote in 1802 to the Baptists of Danbury, Connecticut (who were formerly taxed to support the established church in the state), that the establishment clause erected "a wall of separation between church and state." Critics of Black's reasoning (most notably, Chief Justice William H. Rehnquist) has argued that that a majority of states did have "official" churches at the time of its adoption and that James Madison, not Jefferson, was the principal drafter of the Bill of Rights. However Madison himself often wrote of "total separation of the church from the state" (1819 letter to Walsh), "perfect separation between the ecclesiastical and civil matters" (1822 letter to Livingston), "line of separation between the rights of religion and the civil authority... entire abstinence of the government" (1832 letter Rev. Adams), and "practical distinction between Religion and Civil Government as essential to the purity of both, and as guaranteed by the Constitution of the United States" (1811 letter to Baptist Churches).

In Lemon v. Kurtzman (1971), the Supreme Court ruled that government may not "excessively entangle" with religion, for instance by funding the latter. The case involved two state laws: one permitting religious schools to pay for the use of public school services in secular fields, and the other permitting the state to pay a percentage of the salaries of private school teachers, including teachers in religious institutions. The Supreme Court found that the government was "excessively entangled" with religion, and thereby invalidated the statutes in question. The excessive entanglement test, together with the secular purpose and primary effect tests (see below), form the Lemon test, which judges often use to test the constitutionality of a statute on establishment clause grounds.

The Supreme Court decided Committee for Public Education & Religious Liberty v. Nyquist and Sloan v. Lemon in 1973. In both cases, states—New York and Pennsylvania—had enacted laws whereby public tax revenues would be paid to low-income parents so as to permit them to send students to private schools. It was held that in both cases, the state unconstitutionally provided aid to religious organizations. The ruling was partially reversed in Mueller v. Allen (1983). There, the Court upheld a Minnesota statute permitting the use of tax revenues to reimburse parents of students. The Court noted that the Minnesota statute granted such aid to parents of all students, whether they attended public or private schools.

While the Court has prevented states from financially aiding parochial schools, it has not stopped them from aiding religious colleges and universities. In Tilton v. Richardson (1971), the Court permitted the use of public funds for the construction of facilities in religious institutions of higher learning. It was found that there was no "excessive entanglement" since the buildings were themselves not religious, unlike teachers in parochial schools, and the aid came in the form of a one-time grant, rather than continuous assistance.

One of the largest recent controversies over the amendment centered on school vouchers—government aid for students to attend private (often religious) schools. The Supreme Court, in Zelman v. Simmons-Harris (2002), upheld the constitutionality of private school vouchers, turning away an Establishment Clause challenge. Voucher advocates have been somewhat disappointed by state responses to the decision, as they have had little success in convincing state legislators to go forward with voucher programs.

School prayer

Further important decisions came in the 1960s, during the Warren Court era. One of the Court's most controversial decisions came in Engel v. Vitale, decided in 1962. The case involved a prayer written by the New York Board of Regents. Though the prayer was non-denominational, the Supreme Court deemed it necessary to strike it down. Justice Black wrote, "it is no part of the official business of government to compose official prayers for any group of American people to recite as part of a religious program carried out by the Government." The reading of the Lord's Prayer or of the Bible in the classroom of a public school by the teacher was ruled unconstitutional in 1963. The ruling did not apply to parochial or private schools in general. The decision has been criticized by many, including the late Chief Justice William H. Rehnquist, especially evangelical Protestants.

In Abington Township v. Schempp, the case involving the reading of the Lord's Prayer in class, the Supreme Court introduced the "secular purpose" and "primary effect" tests, which were to be used to determine compatibility with the establishment clause. Essentially, the law in question must have a valid secular purpose, and its primary effect must not be to promote or inhibit a particular religion. Since the law requiring the recital of the Lord's Prayer violated these tests, it was struck down. The "excessive entanglement" test was added in Lemon v. Kurtzman (vide supra).

In Wallace v. Jaffree (1985), the Supreme Court struck down an Alabama law whereby students in public schools would observe daily a period of silence for the purpose of private prayer. The Court did not, however, find that the moment of silence was itself unconstitutional. Rather, it ruled that Alabama lawmakers had passed the statute solely to advance religion, thereby violating the secular purpose test.

The 1990s were marked by controversies surrounding religion's role in public affairs. In Lee v. Weisman (1992), the Supreme Court ruled unconstitutional the offering of prayers by religious officials before voluntarily attended ceremonies such as graduation. Thus, the Court established that the state could not conduct religious exercises at public occasions even if attendance was not strictly compulsory. In Santa Fe Independent School Dist. v. Doe (2000), the Court ruled that even a vote of the student body could not authorize student-led prayer prior to school events.

In 2002, controversy centered on a ruling by the Court of Appeals for the Ninth Circuit in Newdow v. United States Congress (2002), which struck down a California law providing for the recitation of the Pledge of Allegiance (which includes the phrase "under God") in classrooms. Each House of Congress passed resolutions reaffirming their support for the pledge; the Senate vote was 99–0 and the House vote was 416–3. The Supreme Court heard arguments on the case, but did not rule on the merits, creating a new principle of "prudential standing", questioning Newdow's custody claims over his daughter, which the Court found to be too weak to allow Newdow to file lawsuits on her behalf, a principle just narrow enough to allow the Court to reverse the Court of Appeals under heavy political pressure, without ruling on the substance of the case.

Religious displays

The inclusion of religious symbols in public holiday displays came before the Supreme Court in Lynch v. Donnelly (1984), and again in Allegheny County v. Greater Pittsburgh ACLU (1989). In the former case, the Court upheld the public display of a crèche, ruling that any benefit to religion was "indirect, remote, and incidental." In Allegheny County, however, the Court struck down a crèche display, which occupied a prominent position in the county courthouse and bore the words Gloria in Excelsis Deo, the words sung by the angels at the Nativity (Luke 2:14 in the Latin Vulgate translation). At the same time, the Allegheny County Court upheld the display of a nearby menorah, which appeared along with a Christmas tree and a sign saluting liberty, reasoning that "the combined display of the tree, the sign, and the menorah...simply recognizes that both Christmas and Chanukah are part of the same winter-holiday season, which has attained a secular status in our society."

A recent controversy surrounded Roy Moore, former Chief Justice of Alabama. Moore had in 2001 installed a monument to the Ten Commandments in the state judicial building. In 2003, he was ordered in the case of Glassroth v. Moore by a federal judge to remove the monument, but he refused to comply, ultimately leading to his removal from office. He argued that his right to acknowledge God was denied. It may be pointed out, however, that he retained his right to acknowledge God as a private person. It was only a violation of the establishment clause to erect a religious monument on government property; Moore was free to maintain that monument on private land. The Supreme Court refused to hear the case, allowing the lower court's decision to stand.

On March 2, 2005, the Supreme Court heard arguments for two cases involving religious displays, Van Orden v. Perry and McCreary County v. ACLU of Kentucky. These were the first cases directly dealing with display of the Ten Commandments the Court had heard since Stone v. Graham (1980). These cases were decided on June 27, 2005. In Van Orden, the Court upheld, by a 5-4 vote, the legality of a Ten Commandments display at the Texas state capitol due to the monument's "secular purpose." In McCreary County, however, the Court ruled 5-4 that displays of the Ten Commandments in several Kentucky county courthouses were illegal because they were not clearly integrated with a secular display, and thus were considered to have a religious purpose.

It is worth noting that among the eighteen influential lawgivers depicted in the north and south friezes of Supreme Court building are three religious figures - Moses, Confucius, and Muhammad. Moses is depicted holding the Ten Commandments, commandments six through ten partially visible in Hebrew; Mohammad is depicted holding the Qur'an, the primary source of Islamic Law. The Supreme Court building depicts religious imagery in similar contexts in other places as well, including two additional sets of tablets representing the Ten Commandments.

Research Resources

• First Amendment Library entry for Establishment Clause Cases (with links to all of the Supreme Court's Establishment Clause cases)

• First Amendment to the U.S. Constitution