Establishment Clause

Establishment Clause
Name	Establishment Clause
Jurisdiction	United States
Text	"Congress shall make no law respecting an establishment of religion..."
Adopted	1791
Source	First Amendment to the United States Constitution

Contents

Establishment Clause The Establishment Clause is a provision of the First Amendment to the United States Constitution that restricts legislative action "respecting an establishment of religion." It is a focal point in disputes involving religious expression, public institutions, and civil rights, shaping litigation in the Supreme Court of the United States, debates in the United States Congress, and policies in state legislatures such as the California State Legislature and the New York State Assembly. Scholars, litigants, and activists affiliated with organizations like the American Civil Liberties Union, the Becket Fund for Religious Liberty, and the Alliance Defending Freedom frequently engage with the Clause in cases before federal courts including the United States Court of Appeals for the Ninth Circuit and the United States Court of Appeals for the Second Circuit.

Background and Text

The text appears in the First Amendment, ratified as part of the Bill of Rights in 1791 during the administration of George Washington, drafted in context with figures such as James Madison, Thomas Jefferson, John Adams, and debates in the First Federal Congress. The Clause reads in part alongside the Free Exercise Clause, creating doctrinal tension in cases argued before the Marshall Court, the Warren Court, and the Rehnquist Court. Debates about its meaning engage historical actors including the Virginia Statute for Religious Freedom, authored by Thomas Jefferson and enacted by the Virginia General Assembly, and contemporaneous treaties like the Treaty of Paris (1783) that framed early American institutional arrangements.

Early American practice varied across states such as Massachusetts Bay Colony, Pennsylvania, and Virginia where established churches like the Church of England and the Congregational Church had differing statuses. Influential documents and events shaping interpretation include the Mayflower Compact, the writings of John Locke, the controversies involving figures like Roger Williams and institutions such as Harvard College and Yale University. Founders including Alexander Hamilton, Benjamin Franklin, and Roger Sherman contributed to legislative debates in the Continental Congress and the Constitutional Convention of 1787 that influenced Madisonian constructs later litigated in cases arising from state actions like compulsory religious tests and tax support for parochial schools.

The Supreme Court of the United States developed multiple analytical frameworks including the Lemon v. Kurtzman test, the endorsement test associated with opinions by Justices such as Sandra Day O'Connor and Anthony Kennedy, and the coercion test articulated in opinions by Justices including William J. Brennan Jr. and Antonin Scalia. Other doctrines evolved in decisions authored by Chief Justices like Earl Warren and William Rehnquist, and in opinions by Justices Oliver Wendell Holmes Jr., Felix Frankfurter, and Hugo Black. The Court's use of precedent from cases such as Everson v. Board of Education and McCollum v. Board of Education shaped standards applied by lower tribunals including the United States District Court for the Southern District of New York and the United States District Court for the Eastern District of California.

Key Supreme Court decisions include Everson v. Board of Education (incorporation doctrine), Lemon v. Kurtzman (three-pronged test), Engel v. Vitale (school prayer), Abington School District v. Schempp (Bible reading), Wallace v. Jaffree (moment of silence), Lynch v. Donnelly (public displays), County of Allegheny v. ACLU (holiday displays), Santa Fe Independent School District v. Doe (student-led prayer), Van Orden v. Perry and McCreary County v. ACLU (Ten Commandments displays), and more recent decisions such as Town of Greece v. Galloway, Kennedy v. Bremerton School District, and American Legion v. American Humanist Association which altered aspects of earlier tests. Opinions from Justices like John Paul Stevens, Anthony Kennedy, Samuel Alito, and Neil Gorsuch further refined doctrinal lines.

Applications span disputes over funding for parochial schools and charter schools, religious symbols on public land including monuments like the Mount Soledad Cross and the Vietnam Veterans Memorial, clergy-led prayer at public meetings such as those held by the United States Congress or city councils in Greece, New York, and accommodations in public employment involving institutions like the Department of Defense and the Federal Bureau of Investigation. Contentious issues involve benefits like tax exemptions for religious institutions including Catholic Charities and Southern Baptist Convention organizations, school curricula controversies linked to works such as The Origin of Species by Charles Darwin versus creationist proposals associated with groups like Institute for Creation Research, and debates over religious displays involving organizations such as the American Legion and advocacy by the Freedom From Religion Foundation.

Comparable provisions appear in constitutions and judicial bodies outside the United States, including the European Court of Human Rights interpreting the European Convention on Human Rights, the Supreme Court of Canada under the Canadian Charter of Rights and Freedoms, the Constitutional Court of Germany applying principles from the Basic Law for the Federal Republic of Germany, and the High Court of Australia addressing the Australian Constitution. Comparative scholarship references legal traditions from countries like France (laïcité), India (interpretation by the Supreme Court of India), and Turkey (secularism under the Constitution of Turkey), and involves international instruments such as the Universal Declaration of Human Rights and cases before regional tribunals like the Inter-American Court of Human Rights.