What was the original intention of the First Amendment’s injunction against laws “respecting an establishment of religion”? That question is being asked once again in the wake of the recent Supreme Court decision against the nonsectarian prayer prescribed by the New York State Board of Regents for daily recitation in the schools. The hostile reaction to the decision reveals how little the establishment clause is understood, how welcome to certain groups are the many breaches in the “wall of separation” between religion and government. These breaches are the more easily justified if the Court, as its critics insist, has really misread, indeed perverted, the intentions of the framers of the First Amendment. But the critics are wrong, their history faulty.
No one, of course, would really permit his judgment of a contemporary church-state issue to be determined by an antiquarian examination of the original meaning of the clause against establishments of religion. There is, to be sure, a comforting assurance in having the authority of the past coincide with present legislative preferences, and it is an old American custom to invoke the names of the framers to buttress an argument. However, it is also an old American custom to dismiss the framers when it becomes clear that they cannot be conscripted into service. After all, one can always argue that what passed for wisdom in their era may very well by now have passed out of date. Even so, few would openly reject the principles on which the Constitution was based.
The principle that government and religion be kept separate is not directly, at least not yet, under attack by the critics of the Court’s recent decision. Their tactic is to argue that the purpose of separation was merely to prevent government preference of one religious group over another, so as to insure religious liberty for all.
The stakes in the current controversy are large: the question of federal and state aid (as well as tax-supported bus rides) to sectarian schools accounts for much of the Catholics’ bitterness against the Court. The school-prayer decision was quickly condemned, for example, by the national Catholic weekly America, as a “stupid decision . . . a decision that spits in the face of our history.” And William Buckley, Jr., prominent Catholic layman and the editor of the National Review, states in his nationally syndicated column, “The First Amendment to the Constitution was not designed to secularize American life, merely to guard against an institutionalized preeminence of a single religion over others on a national scale.”
The implied outlawing of Bible-reading, Christmas plays, and religious songs in the public schools, public crèches, and released-time programs, has also united many Protestant spokesmen in similar criticism of the decision, despite their usually outspoken declarations in favor of separation of church and state and against public aid to sectarian schools. Thus, Reinhold Niebuhr, the distinguished Protestant theologian and political liberal, protested that the Court did not follow “what the First Amendment intended.” California’s Bishop James A. Pike has used even stronger language, charging that the Court’s decision “has just deconsecrated the nation.” He urged that the decision be overridden by a constitutional amendment which would insert in place of “establishment of religion” in the First Amendment, the phrase “. . . the establishment of any denomination, sect, or other organized religious association. . . .” The First Amendment, according to Pike, “merely meant to prevent the establishment of a particular religion or the suppression of a particular religion.”
This narrow view of the meaning of the establishment clause has also been supported by one of our leading constitutional scholars, Professor Edward S. Corwin, who concluded a sketchy survey of the historical sources by affirming that the Court’s interpretation of the First Amendment as making government aid to religion in general unconstitutional is “untrue historically.” “In a word,” Professor Corwin added, “what the ‘establishment of religion’ clause of the First Amendment does, 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 phrase.” Justice Potter Stewart, the only dissenter in the school-prayer case, indicated his agreement with this interpretation when he pointed out that the Court was not confronted by “the establishment of a state church” or an “official religion.”
In defense of the Court, and out of respect for history, the erroneous nature of the narrow interpretation of the establishment clause should be exposed. According to that interpretation—as we have seen from the above quotations—the wall of separation was not meant to enjoin the government from fostering religion generally or from helping all such religious groups as are willing to accept government support or aid, whether in the form of tax benefits, promotional activities, or direct subsidy. Now, it is true that the framers did not speak loudly, clearly, and in a single voice on behalf of the broad interpretation adopted by the Court in the school-prayer case. But the preponderance of the evidence certainly supports the broad interpretation as historically more accurate.
Justice Black, the Court’s spokesman in the school-prayer case, advanced the broad interpretation in its most authoritative form in the school-bus case of 1947. He then declared:
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.”
The dissenting justices in the school-bus case, while disagreeing with the majority on the question of whether the “wall of separation” had in fact been breached by the practice at issue, nevertheless concurred with the majority view of the intentions of the framers. Justice Rutledge’s opinion, which was endorsed by all the dissenting justices, declared:
The Amendment’s purpose was not to strike merely at the official establishment of a single sect, creed or religion, outlawing only a formal relation such as had prevailed in England and some of the colonies. Necessarily it was to uproot all such relationships. But the object was broader than separating church and state in this narrow sense. It was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.
In other words, according to the broad interpretation, even government aid that is impartially and equitably administered to all religious groups is barred by the First Amendment.
The debate in the First Congress, which drafted the Bill of Rights, provides support neither for the broad nor the narrow interpretation. Yet the drafting history of the clause, in contrast to the debate, is revealing. In the House, the prohibitory phrase was aimed against laws “establishing religion.” In the Senate, three motions, each of which clearly expressed a narrow intent, were introduced and defeated. All were explicitly directed against laws preferring one religious “sect” or “denomination” above others. Although their defeat would seem to show that the Senate intended something broader than merely a ban on preference to one sect, it finally did adopt a narrow prohibition: “Congress shall make no law establishing articles of faith or a mode of worship. . . .” But the Senate’s wording provoked the House to clarify its intent; for the House rejected the Senate’s article on religion. To resolve the disagreement between the two branches, the House proposed a joint conference committee. The six-man committee—four of whom had been influential members of the constitutional convention—included James Madison as chairman of the House conferees, and Oliver Ellsworth (later Chief Justice) as chairman of the Senate conferees. The House members flatly refused to accept the Senate’s version of the amendment on religion, indicating that the House would not be satisfied with merely a ban against the preference of one sect or religion over others. The Senate conferees then abandoned the Senate version, and the amendment was re-drafted to give it the phraseology which has come down to us: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .”
The one fact which stands out from this review of the drafting of the amendment is that Congress very carefully considered and rejected the phraseology which spells out 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, as Madison explicitly 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. And one such forbidden field was religion.
The history of the drafting of the no-establishment clause does not provide a clear understanding of what was meant by the phrase “an establishment of religion.” To argue, however, as proponents of the narrow interpretation do, that the amendment permits government aid and support to religion in general or to all churches without discrimination, leads to the impossible conclusion that the First Amendment added to Congress’s powers. There is nothing to support this notion. Every bit of evidence we have goes to prove that the First Amendment, like the others, was intended to restrict Congress to its enumerated powers. Since Congress was given no power by the Constitutional Convention to legislate on matters concerning religion, and therefore could not support all religious groups nonpreferentially, Congress would have had no such power even in the absence of the First Amendment. It is therefore unreasonable to suppose that an express prohibition of power—“Congress shall make no law respecting an establishment of religion”—vests or creates the power, previously nonexistent, of supporting religion by aid to one or all religious groups. The Bill of Rights, as Madison said, was not framed “to imply powers not meant to be included in the enumeration.”
Madison and his colleagues were not merely logicians or hair-splitting lawyers. Nor were they abstract theoreticians. If they did not carefully define what they meant by an establishment of religion, the reason is simply that they knew from common experience what they were talking about. At the time of the framing of the First Amendment, six states maintained or authorized establishments of religion. By that amendment, Congress was denied the power to do what those states were doing—and since the adoption of the Fourteenth Amendment, the states have been included in the ban. “An establishment of religion” meant to the framers what it meant in those states. Thus, reference to the American experience with establishments of religion at the time of the framing of the Bill of Rights is essential for any understanding of what the framers intended.
The American experience was in many respects unique, for it did not always follow the pattern of European precedents. Persons unaware of this fact have arbitrarily assigned to the phrase, “an establishment of religion,” its European meaning only. James M. O’Neill, for example, whose Religion and Education under the Constitution presents the best argument on behalf of the narrow interpretation of the establishment clause, ignored the American establishments and therefore concluded, in capital letters, that “an establishment of religion” has always and everywhere meant what he found it meant in Europe and in the Encyclopaedia Britannica:
a single church or religion enjoying formal, legal, official, monopolistic privilege through a union with the government of the State. . . .The phrase has been used this way for centuries in speaking of the established Protestant churches of England, Scotland, Germany, and other countries, and of the established Catholic Church in Italy, Spain, and elsewhere. There is not an item of dependable evidence . . . which shows that the term means, or ever has meant, anything else.
The encyclopedia and the European precedents notwithstanding, there is abundant evidence that the European form of an establishment was not the American form, and that the European meaning of establishment was not the American meaning. The American Revolution triggered a pent-up movement for the separation of church and state. Four states had never experienced establishments of religion. Of the remaining states, three completely abolished their establishments during the Revolution, and the other six—Massachusetts, New Hampshire, Connecticut, Maryland, South Carolina, and Georgia—converted to comprehensive or multiple establishments. Significantly, every one of the six states explicitly provided that no sect or denomination should be subordinated to any other; all denominations enjoyed equal status before the law on a wholly nonpreferential basis. It is true that in no state was there an establishment which took in every religion without exception. Neither Judaism, Buddhism, Mohammedanism, nor any religion but a Christian one was ever established in America. In half of the six multiple establishments existing in 1789, Christianity was the established religion; Protestantism was specified in the other half.
In each of the six states where plural establishments existed, they included the churches of every denomination and sect with a sufficient number of adherents to form a church. There were probably a few isolated towns or counties in each of the states where the letter of the law was not followed, particularly where a congregation of some sect like the Quakers conscientiously opposed compulsory tax support even of their own church; but such cases were comparatively rare. In general, where Protestantism was established, it was synonymous with religion; there were either no Jews or Catholics, or too few of them to make a difference; and where Christianity was established, as in Maryland which had many Catholics, Jews were scarcely known. It would be a misleading half-truth, therefore, to argue that exclusive establishments of one religion existed in each of the six states; it would miss the novel equalitarianism of the American establishments.
The provisions of these six states show beyond doubt that to understand the American meaning of “an establishment of religion,” one cannot arbitrarily adopt a definition based on European experience. In every European precedent of an establishment, the religion established was that of a single church. It never happened in any European nation that many different churches, or the religion held in common by all of them—i.e., Christianity or Protestantism—were simultaneously established. Establishments in America, on the other hand, both in the colonial and early state periods, were not limited in nature or in meaning to state support of one church. An establishment of religion in America at the time of the framing of the Bill of Rights meant government recognition, aid, or sponsorship of religion, principally through impartial or nonpreferential tax support to the churches. The framers of the First Amendment understood “an establishment of religion” to mean what their experience showed them it meant.
Madison, for example, who is known justifiably as the “father of the Constitution and of the Bill of Rights,” explicitly characterized as an establishment of religion Virginia’s proposed “General Assessment Bill” of 1784, which would have underwritten all the existing churches by the taxes of their adherents. He opposed the bill in principle, not because it did not also provide for the establishment of religious groups that did not then exist in Virginia. Madison’s constitutional scruples were so refined on the question of establishments of religion that he regarded as unconstitutional such legal recognition of financial aids as Presidential proclamations of Thanksgiving, tax exemptions for religious societies, chaplains for Congress and the armed services if paid from government funds, incorporation of churches by the federal government in the District of Columbia, and nonpreferential land grants for the support of religion generally. Jefferson shared the same views. As Rector of the University of Virginia, a state-supported institution, he refused to permit Sunday religious services to be performed on university property. And it is not without current interest that as President, Jefferson refused even to designate or recommend a day of thanksgiving or prayer, on the theory that even so innocuous and interdenominational an act violated the establishment clause.
These early Presidents were deeply religious men, but they opposed any government aid, however beneficent and equitable, to religion. They reasoned that religion should remain a voluntary and private matter, the exclusive concern of the individual and his Creator. Any “alliance or coalition between Government and Religion,” advised the aged Madison, “cannot be too carefully guarded against.” He argued for a “perfect separation,” believing that “religion and Government will exist in greater purity, without than with the aid of Government.”
Thus the legislative evolution of the establishment clause, the experience with establishments at the time of its drafting, and the opinions of Madison and Jefferson (as well as of other framers) demonstrate the validity of the Supreme Court’s interpretation of the original intention of the framers.
The policy of the First Amendment embodies the wisdom gathered from American colonial and European experience. Since that policy, like a vaccine, is preventive in character, and since that wisdom is subtle, the majority, who benefit from it most, often fail to credit the source of their good fortune. Impatiently they dismiss the ancient warnings that the time to take alarm is at the first experiment with their liberties. In the school-prayer case, the Court was quite sensitive to the dangers of such experimentation, but this has unfortunately not always been true of its decisions. From the time that it enunciated the broad interpretation in the school-bus case and yet found no constitutional breach in the wall—provoking Justice Jackson to note that the majority opinion reminded him of Byron’s Julia who “whispering, ‘I will ne’er consent,’—consented”—the Court has been extremely inconsistent, even erratic, in its interpretation of the establishment clause.
The public, which has little patience with legal distinctions, has a right to be appalled at the contradictory results of the Court’s various decisions on the establishment clause: New York’s released-time program of religious education for public school children, New Jersey’s subsidized bus-rides for parochial school children, and Massachusetts’ Sunday closing or blue laws are not, the Court has ruled, violations of the establishment clause. Yet New York’s brief, non-denominational school prayer—“Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country”—the Court has declared unconstitutional. That Justice Black, the author of the school-bus decision (constitutional) is also the author of the school-prayer decision (unconstitutional) only adds to the public’s confusion.
Even more confusing is Justice Douglas’s record. In his opinion for the Court in the released-time case, he spoke of America as a religious nation “whose institutions presuppose a Supreme Being,” called approving attention to the many trivial breaches in the wall of separation, and remarked, with seeming sarcasm, that a “fastidious atheist or agnostic could even object to the supplication with which the Court opens each session: “God save the United States and this Honorable Court.” Now, in his well-publicized concurring opinion in the school-prayer case, Justice Douglas clearly indicates his belief that that supplication, like the New York Board of Regents prayer, is unconstitutional.
The Court has reaped the scorn of a confused and aroused public because it has been inconsistent; moreover, its past compromises failed to prepare the public for a principled decision. The school-prayer decision, however impolitic, is sound, constitutionally and historically, and has the effect of reinforcing the framers’ original injunction against any form of an establishment of religion. One may hope that the Court, having now decided rightly, will shun a policy of appeasement, and that this decision will serve not merely as another incident in a history of vacillation, but as a strong reconnection with the principles and intentions of the framers.