The Establishment Clause is a clause located in the First Amendment of the United States Constitution that prohibits the government from passing any law to "establish" religion. The Establishment Clause applies to the federal government as well as state and local governments. Its interpretation has created controversy over the last two centuries, as it is sometimes at odds with the Free Exercise Clause.
What Is the U.S. Constitution?
In the very early years of U.S. history, the country was divided into 13 separate states governed by the Articles of Confederation, which allowed each state to essentially be its own sovereign power. Concern arose that a more centralized power was necessary to keep the new country stable, and a group of leaders led by Alexander Hamilton met in Philadelphia to review the Articles and revise them accordingly. What grew from that meeting instead was the United States Constitution, a governing body of laws that created a centralized, sovereign government while allowing the individual states to enact their own laws consistent with the Constitution's framework.
The Constitution became the supreme law of the land on June 21, 1788, when nine of the 13 states voted for its ratification. The Constitution contains seven Articles and is also subject to 27 Amendments.
The First 10 Amendments: The Bill of Rights
After the Constitution was ratified, the leaders of the states complained to the new federal government that certain individual freedoms were oppressed by the Constitution's mandates. In response, James Madison drafted the Bill of Rights, which includes the first 10 Amendments to the Constitution. The Bill of Rights was ratified on December 15, 1791.
The First Amendment to the Constitution
The First Amendment concerns freedom of religion, expression, assembly and petition. Essentially, it protects citizens from governmental efforts to oppress their rights to free speech, religious freedom and freedom to assemble, protest and petition against the government.
The First Amendment states: "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 to petition the government for a redress of grievances."
The Establishment Clause Text of the First Amendment
The Establishment Clause is the first part of the First Amendment. It says Congress shall make no law "respecting an establishment of religion." The Free Exercise Clause follows the Establishment Clause and provides that the government cannot make any law "prohibiting the free exercise" of religion.
Interpreting the Constitution: the Judicial Branch
The Constitution, like all laws, is subject to interpretation. When a constitutional directive or other law is questioned, it is up to the courts to interpret the law and apply it to the case before it. If the case makes it all the way up to the U.S. Supreme Court and the Supreme Court renders a decision about what that law means, that interpretation becomes the law of the land unless or until it is challenged again and the Court overrules itself.
The Supreme Court's decisions in particular cases are published as opinions. One of the justices is chosen to write the opinion, which sets forth the Court's reasoning behind why it decided the way it did. The Supreme Court has decided many, many cases interpreting the Constitution including Establishment Clause cases.
Establishment Clause Cases
Cases involving the Establishment Clause typically relate to:
- Whether a law discriminates against a person, entity or group on the basis of religion.
- Whether a law improperly involves the establishment of religion despite not being discriminatory on its face.
Establishment Clause and Discrimination
In Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994), the Supreme Court reviewed a case involving school district boundaries. Kiryas Joel is a village in New York comprised entirely of Satmar Hasidic Jews. The village was part of a larger school district, and the villagers sent their children to private religious schools to avoid interaction with non-Satmar students. However, their children with certain disabilities were required to go to public schools due to lack of required services. The villagers instead pulled these children from the public schools to limit their exposure to children outside the religion. To remedy the problem, the New York state legislature passed a law specifically allowing the village to maintain its own separate school district so that their children with disabilities could have their own public schools separate from non-Satmar children.
The Supreme Court held that the law was discriminatory, as it favored the Satmar religion by creating a special school district to accommodate their religious needs.
Establishment Clause and Non-Discriminatory Laws: The Lemon Test
To interpret laws that don't appear to discriminate on the basis of religion but otherwise invoke review under the Establishment Clause, courts must follow the test created by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971). Called the Lemon test, the test requires courts to review the law or the government's action and determine whether:
- The law or the governmental action has a secular purpose.
- The effect of the law or action does not advance or inhibit religion.
- The law or action does not involve excessive government entanglement in religion.
A law or action will fail the Lemon test and be deemed unconstitutional if any one of these prongs fails. For instance, if a law is found to have a secular purpose, it can still be unconstitutional if the effect of the law advances or inhibits religion, or if the law involves excessive government entanglement with religion.
Laws or Actions With a Non-Secular Purpose
Government laws and actions have been struck down as unconstitutional for having a non-secular purpose. These include actions like public schools setting aside moments of silence for prayer, or religious iconography for only one religion displayed at government buildings. The governments in question were unable to explain how these actions could have a secular purpose.
Laws or Actions That Advance or Inhibit Religion
Even if a law has a secular purpose, it may be unconstitutional if it advances or inhibits a particular religion or non-religion. This could include laws that give religious people days off based on their religious holidays while not giving the same day off to other employees who are not religious or who do not have a Sabbath.
Laws or Actions That Involve Excessive Government Entanglement With Religion
A law or government action will involve "excessive entanglement" if the law is continuing or enduring in its effect. The Supreme Court in the Lemon case ruled that state statutes providing public funding to certain private religious schools, while having a secular purpose had the cumulative effect of excessive government entanglement with religion. The laws were enacted to further education and not to further religion, and they required that the funding be used only for secular subjects. However, the Court found that these states would need to engage in continued "surveillance" of these private schools to ensure that the funds were only applied to secular subjects, thus creating excessive entanglement.
The Establishment Clause and the Free Exercise Clause
The First Amendment's mandates on religious freedom are contained within the Establishment Clause and the Free Exercise Clause. These two clauses are frequently read together, as they are part of the same part of the sentence, and also because they relate so closely to each other. Unfortunately, they often conflict with one another, and this conflict has caused some difficulties in interpreting them.
The Establishment Clause is a clause within the First Amendment of the U.S. Constitution; it prohibits the federal government from creating any laws on the establishment of religion. The Establishment Clause also applies to state and local government by virtue of the Fourteenth Amendment.
- Constitutional Law Reporter: First Amendment: Establishment Clause
- The National Constitution Center: Common Interpretation - The Establishment Clause
- U.S. Courts: First Amendment and Religion
- Cornell University Law School Legal Information Institute: Establishment Clause
- Cornell University Law School Legal Information Institute: The First Amendment of the U.S. Constitution
- Cornell University Law School Legal Information Institute: The Free Exercise Clause
- WhiteHouse.gov: The Constitution
- The Bill of Rights Institute: Bill of Rights of the United States of America (1791)
- American Civil Liberties Union: The Establishment Clause and the Schools
Rebecca K. McDowell is a creditors' rights attorney with a special focus on bankruptcy and insolvency. She has a B.A. in English from Albion College and a J.D. from Wayne State University Law School. She has written legal articles for Nolo and the Bankruptcy Site.