ESTABLISHMENT OF RELIGION

The first amendment begins with the clause, "Congress shall make no law respecting an establishment of religion.…" There are two basic interpretations of what the framers meant by this clause. In everson v. board of education (1947), the first decision on the clause, the Supreme Court unanimously adopted the broad interpretation, although the Justices then and thereafter disagreed on its application. (See separation of church and state.) Justice hugo l. black declared that the clause means not only that government cannot set up a church but also that government cannot aid all religions impartially or levy a tax for the support of any religious activities, institutions, or practices. "In the words of [ thomas ] jefferson, " Black said, "the clause against establishment of religion by laws was intended to erect "a wall of separation between Church and State."

edward s. corwin, a distinguished constitutional scholar who espoused the narrow view of the clause, asserted that the Court's interpretation was "untrue historically." What the clause does, he wrote, "and all that it does, is to forbid Congress to give any religious faith, sect, or denomination preferred status.… The historical record shows beyond peradventure that the core idea of "an establishment of religion' comprises the idea of preference; and that any act of public authority favorable to religion in general cannot, without manifest falsification of history, be brought under the ban of that phase" (Corwin, "Supreme Court as National School Board," pp. 10, 20). Justice potter stewart, dissenting in engel v. vitale (1962), endorsed the narrow view when he noted that a nondenominational school prayer did not confront the Court with "the establishment of a state church" or an "official religion."

The debate in the First Congress, which proposed the First Amendment, provides support for neither the broad nor the narrow interpretation. The history of the drafting of the clause, however, is revealing. Congress carefully considered and rejected various phrasings that embraced the narrow interpretation. At bottom the amendment was an expression of the intention of the Framers of the Constitution to prevent Congress from acting in the field of religion. The "great object" of the bill of rights, james madison, had said, when introducing his draft of amendments to the House, was to "limit and qualify the powers of Government" for the purpose of making certain that none of the powers granted could be exercised in forbidden fields, including religion. The history of the drafting of the establishment clause does not provide a clear understanding of what was meant by the phrase "an establishment of religion." But the narrow interpretation, which permits government aid to religion in general or on a nonpreferential basis, leads to the impossible conclusion that the First Amendment added to Congress's powers. The amendment meant to restrict Congress to the powers that it possessed, and since it had no power to legislate on matters concerning religion, and therefore could not support religion on any basis, Congress would have had no such power even in the absence of the First Amendment. To suppose that an express prohibition on power vests or creates power is capriciously unreasonable. The Bill of Rights, as Madison said, was not framed "to imply powers not meant to be included in the enumeration."

Congress did not define "an establishment of religion" because its members knew from common experience what they meant. At the time of the framing of the amendment, six states maintained or authorized establishments of religion. That amendment denied to Congress the power to do what those states were doing, and since Everson the states come under the same ban. An establishment meant to the framers of the amendment what it meant in those states. Thus, reference to the American experience with establishments at the time of the framing of the Bill of Rights is essential to any understanding of what the clause in question meant.

The narrow interpretation is based on European precedents but the European form of an establishment was not the American form, except in the Southern colonies before the american revolution, and the European meaning of establishment was not the American meaning. The revolution triggered a pent-up movement for separation of church and state in the nine states that had establishments. Of these nine, North Carolina (1776), New York (1777), and Virginia (1786) separated church and state. Each of the remaining six states made concessions to anti-establishment sentiment by broadening their old establishments. After the Revolution, none maintained a single or exclusive establishment. In all six an establishment of religion was not restricted to a state church or a system of public support of one denomination; in all an establishment meant public support of all denominations and sects on a nonpreferential basis.

Three of these six states were in New England. The massachusetts constitution (1780) authorized its towns and parishes to levy taxes for the support of Protestant churches, provided that each taxpayer's money go to the support "of his own religious sect or denomination" and added that "no subordination of any one sect or denomination to the other shall ever be established by law." An establishment in Massachusetts meant government support of religion. Congregationalists, for a few decades, benefited the most, because they were the most numerous and resorted to various tricks to fleece non-Congregationalists out of their share of religious taxes. But the fact remains that Massachusetts had a multiple, not a single, establishment under which Baptist, Episcopalian, Methodist, and Unitarian churches were publicly supported until the establishment ended in 1833. In 1784 Connecticut and New Hampshire modeled their multiple establishments after that of Massachusetts, ending them in 1818 and 1819, respectively.

In the South, where the Episcopal Church was the sole established church before the revolution, three states either maintained or permitted establishments of religion, and in each the multiple form was the only legal one. Maryland (1776) permitted its legislature to tax for the support of "the Christian religion," with the proviso that every person had the right to designate the church of his choice, making every Christian church an established church on a nonpreferential basis. The legislature sought to pass an enabling act in 1785, but the nonpreferential system was denounced as an establishment and defeated. The situation in Georgia was the same as in Maryland, and a revised constitution (1789), which was in effect when the First Amendment was adopted, continued the multiple establishment system, allowing each person to support only his own church. South Carolina restricted its multiple nonpreferential establishment to Protestant churches. The last Southern establishment died in 1810. Virginia sought to emulate the Maryland system, but a general assessment bill benefiting all Christian churches failed, thanks to the opposition of most non-Episcopal denominations and to madison ' s memorial and remonstrance; the virginia statute of religious freedom (1786) then separated church and state.

In none of the six states maintaining or allowing establishments at the time of the framing of the First Amendment was any church but a Christian one established. The multiple establishments of that time comprehended the churches of every denomination and sect with a sufficient number of adherents to form a church. Where Protestantism was established it was synonymous with religion; there were either no Jews or no Roman Catholics or too few of them to make a difference. Where Christianity was established, as in Maryland, which had a significant Roman Catholic minority, Jews were scarcely known. To contend that exclusive establishments of one religion existed in each of the six states ignores the novel American experiment with multiple establishments on an impartial basis. Europe knew only single-church establishments. An establishment of religion in the United States at the time of the First Amendment included nonpreferential government recognition, aid, or sponsorship of religion. The framers of the amendment looked to their own experience, not Europe's.

Leonard W. Levy
(1986)

(see also: Creationism; Larkin v. Grendel's Den, Incorporated; Lynch v. Donnelly; Marsh v. Chambers; Mueller v. Allen; Thornton v. Caldor, Inc.; Valley Forge Christian College v. Americans United for Separation of Church and State; Wallace v. Jaffree; Widmar v. Vincent.)

Bibliography

Antieau, Chester James et al. 1964 Freedom from Federal Establishment: Formation and Early History of the First Amendment Religion Clauses. Milwaukee, Wisc.: Bruce Publishing Co.

Cobb, Sanford H. 1902 The Rise of Religious Liberty in America. New York: Macmillan.

Corwin, Edward S. 1949 The Supreme Court as National School Board. Law and Contemporary Problems 14:3–22.

Levy, Leonard W. 1986 The Establishment Clause: Religion and the First Amendment. New York: Macmillan.