With regard to religion, there are two important parts or “clauses” in the First Amendment — the Establishment Clause and the Free Exercise Clause.

The Establishment Clause

The Establishment Clause declares that the Congress “shall make no law respecting an establishment of religion.” While there have been many different interpretations of the Establishment Clause, one of the most common is that there should be a “separation” between church and state, that is, between "religion and government. (It should be noted that the phrase ”separation of church and state” does not exist anywhere in the Constitution. It originated in a letter Thomas Jefferson wrote in 1802.) Another interpretation, which is not incompatible with the first, is that government should be neutral with regard to religion. In the competition of religious ideas, the government should neither favor nor disfavor any religion or even irreligion. But what does this mean in practice? What is permissible for the government to do? What should it refrain from doing?

The Supreme Court has issued several rulings interpreting and clarifying the Establishment Clause. Here are some highlights:

• In a series of cases, the Court has declared that the government should be “nonpreferentialist” in its approach to religion. In the granting of tax exempt status to churches, for example, the government cannot prefer one religion over another — it must treat all religions equally.
• In Lemon v. Kurtzman, the Supreme Court announced a three-part test it would use in determining whether the government’s actions in a particular case violated the Establishment Clause. Now referred to as the “Lemon Test,” the Court asks these questions whenever there is an allegation that the government has “established” a religion:
  1. Does the law in question have a clear secular, non-religious purpose?
  2. Is the “primary effect” of the law one that “neither advances nor inhibits religion”?
  3. Does the law avoid “excessive government entanglement with religion”?
• If a law or governmental action violates any of these principles, the Court may declare the law or action unconstitutional. Under the Lemon Test, the Court has ruled that free bus transportation to religious schools and aid for students attending religious colleges or universities is permissible. However, supplementing teachers’ salaries at religious schools or providing money for equipment or supplies is not.
• The Supreme Court has also ruled that officially sanctioned prayers in public schools come too close to governmental establishment of religion to be considered constitutional. In the most famous of its prayer cases, Engel v. Vitale, the Supreme Court ruled that requiring students to participate in the recitation of a prayer written by the Board of Regents of the State of New York was unconstitutional. Although the prayer was nondenominational and did not, therefore, promote any specific religion or religious sect, it was unconstitutional because it was an official prayer established by school officials. Since then, the Court has found prayers at graduations and other events, even when led by students, to be contrary to the Establishment Clause.

With regard to the Establishment Clause, the Supreme Court has tried to strike an appropriate balance between protecting the liberties of individuals while promoting and maintaining societal order. It has not always been easy to find that balance. In the case of public funding to religious schools, taxpayers may feel that their liberties (in the form of their tax dollars) are being abused. On the other hand, providing public support for underprivileged students attending religious schools serves a broader public good. Given the nature of the very freedoms the Court attempts to define and protect, it is impossible to make decisions with which everyone will be happy.

 

     

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