is the (No) Establishment Clause?
States History, Civics
Puritan Roger Williams established religious freedom in Rhode Island
in 1634 after being banished for his beliefs from Massachusetts
Bay Colony. At the time of the American Revolution, tax money could
be used in Connecticut by religious denominations that received
the support of the majority of voters in each town. Baptists compared
these taxes that they were forced to pay to the tax on tea imposed
by Parliament. James Madison argued that “toleration” be changed
to “free exercise” of religion in the Virginia Declaration of Rights
in 1776. More than 150 years of decisions like these created the
foundation of religious liberty in the United States.
The relationship of government and religion has been a vital issue
in American life. At first, European settlers believed the unity
and morality of the community depended on divine sanction of political
authority and conformity of its citizens in matters of faith. Eventually,
by separating religion and government and recognizing the freedom
of conscience of all religious groups, America began a political
experiment unprecedented in the world’s history.
This lesson provides the historic background of the religious liberty
clauses of the First Amendment, then focuses on the establishment
clause. After examining the tests used by the Supreme Court in establishment
clause cases, students are asked to judge whether there has been
a violation of the establishment clause in five situations.
- Religious liberty, or freedom of conscience, is an inalienable
- Government has a duty to guard and respect the individual’s
freedom of conscience and belief.
- The No Establishment provision of the First Amendment prohibits
the government from promoting, endorsing or disapproving of religion.
- The government must remain secular, rather than affiliating
with religious beliefs or institutions, to avoid discriminating
against citizens on the basis of their religious beliefs.
- John Winthrop, Roger Williams, religious pluralism, The Great
Awakening and the Enlightenment influenced the thinking of the
Founding Fathers to include religious liberty in the First Amendment.
- The First Amendment tells the government to keep its “hands
off” our religion, our ideas and our ability to express ourselves.
- The First Amendment affirms the freedom of the individual.
- When rights collide, government must balance them.
Tell students that they have the opportunity to develop their own
utopia or perfect society. Have students focus on whether their
utopia will or will not have an established religion. You might
discuss the following:
- Who would have authority in a society with an established religion?
Who would be able to vote? Hold public office?
- What would life be like for individuals in the society?
- What characteristics would leaders of the society have?
- What kinds of laws (e.g., marriage, immigration, criminal code)
might be affected by the establishment of religion?
- How might teaching in public school be affected?
Ask students to list the positive and negative aspects of a society
with an established religion. Compile their responses in two columns
on the chalkboard. Positive aspects might include a shared sense
of morality, social cohesion, a legal code that reinforces religious
values and fewer controversies about religious diversity. Negative
aspects might include oppression of those with divergent values
or beliefs, control of the church by the state or religious differences
being played out through government policies, limits on who could
participate in the political process and more controversies about
Ask students to take a stand on whether they would, at this point
in their understanding, want to live in a country with an officially
designated and/or state-supported religion. Explore the reasons
for students’ responses. Give examples of nations that have official
state religions (Great Britain, Saudi Arabia and Iran); other countries
that have close and explicit ties to one religion; and those nations
that have policies that are hostile to religious beliefs.
- Begin your study of the establishment
clause with an examination of the origins of religious liberty
in the American colonies. Religious freedom has been a driving
force in America and is integral to the other freedoms in the
Bill of Rights. In addition to an exploration of the “Great
Awakening,” 1728-1790, we suggest two main themes to approach
this historic perspective.
Teachers are provided resources for teaching each of these three
themes. The resources may be used as background for the teacher,
handouts for class discussion or enrichment for students.
- Explore the meaning of the establishment clause, using the following
- The establishment clause of the First Amendment reads “Congress
shall make no law respecting an establishment of religion.”
In 1777, Thomas Jefferson authored “A Bill For the Establishment
of Religious Freedom.” It concludes: “We the General Assembly
of Virginia do enact that no man shall be compelled to frequent
or support any religious worship, place, or ministry whatsoever,
nor shall be enforced, restrained, molested, or burthened
in his body or goods, nor shall otherwise suffer, on account
of his religious opinions or belief; but that all men shall
be free to profess, and by argument to maintain, their opinions
in matters of religion, and that the same shall in no wise
diminish, enlarge, or affect their civil capacities.
And though we well know that this assembly, elected by the
people for the ordinary purposes of legislation only, have
no power to restrain the acts of succeeding Assemblies … yet
we are free to declare, and do declare, that the rights hereby
asserted are of the natural rights of mankind, and that if
any act shall be hereafter passed to repeal the present or
to narrow its operation, such act will be an infringement of
- The establishment clause was supported by the framers because
it supported the notions of freedom from government
coercion in matters of religion and the freedom of
religion for each individual. James Madison, drafting his
preliminary proposals for a Bill of Rights, wrote in 1789:
“The civil rights of none shall be abridged because of religious
belief or worship, nor shall any national religion be established,
nor shall the full and equal rights of conscience be in any
manner or in any pretext, infringed.”
- The Supreme Court has supported the concept of No Establishment
of religion by government. In 1947 in Everson v. Board
of Education, Justice Hugo Black, wrote that the Establishment
clause “requires the state to be a neutral in its relations
with groups of religious believers and non-believers; it does
not require the state to be their adversary.” In 1962 Supreme
Court Justice Tom Clark wrote: “The place of religion in our
society is an exalted one, achieved through a long tradition
of reliance on the home, the church and the inviolable citadel
of the individual heart and mind. We have come to recognize
through bitter experience that it is not within the power
of government to invade that citadel, whether its purpose
or effect be to aid or oppose, to advance or retard. In the
relationship between man and religion, the State is firmly
committed to a position of neutrality.”
- Tell students that while
we take the establishment clause for granted, many controversies
arise about whether certain actions involve too much or too little
government protection of religion. The Supreme Court has used
several different “tests” for determining whether the Establishment
clause has been violated. Distribute and discuss with the class
“Tests Used by
the Supreme Court in Establishment clause Cases.” Encourage
students to determine which test allows more government involvement
in religion, which test would be easiest to apply and which test
would result in less disagreement about whether the criteria were
met in a particular case.
- Explain to students that you will share brief situations for
them to consider. After each situation is read, ask students to
decide whether there has been a violation of the Establishment
clause and develop reasons for their position. Students may refer
to the “Tests Used by the Supreme Court in Establishment clause
Cases.” Allow approximately five minutes for each situation. Students
should share and compare their responses and reasons in a large
- Situation 1 — During the Christmas season in 1993, the Ku
Klux Klan asked for permission to erect a large cross in an
area known as Capital Square in Columbus, Ohio. Capital Square
is the site of the state capitol, as well as an open area
in which a menorah and Christmas tree were being displayed.
The state agency regulating public access to this open area
denied the Klan’s request. The agency said that putting a
religious symbol so close to the state capitol would be an
endorsement of religion by the state government. The Klan
sued, arguing that its free speech rights were being denied.
- Situation 2 — For 30 years, city of Los Angeles officials
had authorized the lighting of a huge cross on the City Hall,
at first to honor Christmas holidays and then to honor both
the Roman Catholic/Protestant and Eastern Orthodox Easter
Sundays. The lighting was accomplished by turning certain
lights in the building on or off at night so that the effect
was a huge cross that could be seen for many miles away.
- Situation 3 — Two holiday displays had been held for years
in Pittsburgh on public property. The first, a depiction of
the Christian nativity scene, was placed on the Grand Staircase
of the Allegheny County Courthouse. At the crest of the Nativity
scene or crèche, an angel held a banner proclaiming, “Gloria
in Excelsis Deo,” meaning “Glory to God in the Highest.” The
crèche was donated by the Holy Name Society, a Roman Catholic
group and bore a sign indicating this. The second holiday
display was an 18-foot Chanukah menorah which was placed outside
the City County Building next to the city’s 45-foot decorated
Christmas tree. At the foot of the tree was a sign bearing
the mayor’s name and containing text declaring the city’s
“salute to liberty.” The menorah was owned by Chabad, a Jewish
group, but it was stored, erected and removed each year by
- Situation 4 — Students at a university paid student fees
to support a wide variety of student organizations. The university
limited the groups that could receive support from these fees.
For example, a group publishing a cultural or political magazine
could receive funds, but a group that published a religious
magazine could not. A group that published a magazine advertised
as providing “A Christian Perspective at Our University” was
denied student fees to help pay publishing costs. The university
claimed that providing funding to help pay for the magazine
would violate the establishment clause. The student group
claimed its free speech rights were being denied by the university’s
- Situation 5 — A state legislature passed a bill that required
all public school students to engage in silent prayer at the
start of the school day.
of the judiciary are provided for teachers.
this portion of the lesson by discussing these questions:
- Which of the five situations/cases were the most difficult
to decide? Why?
- With which decisions of the Supreme Court did you personally
agree or disagree? Explain.
- Specifically, how might life in your school, community,
state, and nation be different for you and others if there
were an established church system?
- To conclude
the lesson, ask students to reflect, in an essay, on one of the
following questions. Responses should be supported with specific
examples and quotations.
- Return to the question posed at the beginning of the lesson:
Would you want to live in a country with an officially designated
and/or state-supported religion?
- Should American coins continue to be imprinted with “In
God We Trust”?
- Early Americans held that freedom of conscience was the
most basic of freedoms. In what ways should government and
family develop an understanding of the importance of freedom
- What effect might an established church have on other freedoms
guaranteed in the Bill of Rights?
- Should emerging democracies be encouraged to include an
establishment clause in their new constitutions? Give reasons
why you do or do not support inclusion.
- Assign students to identify and research countries with established
religions. How does the established religion influence the society?
Students should consider such questions as those listed in the
“First Moments” section.
- The Lemon Test
was applied in the nativity scene cases heard by the Supreme Court
in the 1980s. Have students research the facts in Lynch v.
Donnelly (1984), Board of Trustees of the Village of Scarsdale
v. McCreary (1985), and County of Allegheny, Chaban, and
City of Pittsburgh v. American Civil Liberties Union (1989).
How would students apply the Lemon Test in these cases? Does their
reasoning agree with that of the Court? What changes in circumstances
might have made the actions in each of these cases unconstitutional
according to the Lemon Test’s criteria? Would use of the endorsement test or coercion test have changed the Court’s rulings in
these cases? Why or why not?
- In one of his first acts as president, George W. Bush established the White House Office of Faith-Based and Community Initiatives. In creating the office, the President argued that “all too often, the Federal government has put in place complicated rules and regulations preventing [faith-based and community organizations] from competing for funds on an equal footing with other organizations.”
President Barack Obama created a similar program under the banner of the Office of Faith-Based and Neighborhood Partnerships. In announcing the office’s creation, President Obama said, “There is a force for good greater than government. It is an expression of faith, this yearning to give back, this hungering for a purpose larger than our own, that reveals itself not simply in places of worship, but in senior centers and shelters, schools and hospitals, and any place an American decides.”
Have students research the constitutionality of these offices. May the executive branch create such an office and use federal monies to support its projects? Is there a conflict with the establishment clause? Compare and contrast the stated goals and projects taken on by Bush’s Office of Faith-Based and Community Initiatives and Obama’s Office of Faith-Based and Neighborhood Partnerships. Helpful resources in researching this topic include the report Partnership or Peril: Faith-Based Initiatives and the First Amendment by Oliver Thomas and online videos from the Brookings Institution forum “Faith-Based & Neighborhood Partnerships in the Obama Era: Assessing the First Year and Looking Ahead.”
- People are
sometimes unhappy with the way in which the Court interprets the
U.S. Constitution. Some of the students themselves may have disagreed
with the decisions in the cases they studied in this lesson. One
option for people who disagree with Court interpretations is to
propose a constitutional amendment, a change in the Constitution.
Some people who were unhappy with decisions involving the Establishment
clause proposed an amendment called the Religious
Liberties Amendment. Have students research this suggested
amendment, including current status of the amendment.
Divining America: Religion in American History
A collection of essays from the National Humanities Center. Topics covered for the 17th-18th centuries include “Native American Religion in Early America,” “Religious Pluralism in the Middle Colonies,” and “The Church of England in Early America.”
and the Founding of the American Republic
The Library of Congress provides in seven sections a well documented study of the 17th and 18th century immigrants, their religious convictions and the impact of their convictions on the forming of a new government.
A summary of the Supreme Court’s findings in this case.
in Secondary Schools
Coalition of public and private secondary school teachers provides resources for teaching about the world’s religions.
Americans United for Separation of Church and State
The religious liberty watchdog AU provides an easily navigable Web site with legislative update, resources and links to articles. As always, it is important that students consider the source of their information.
of Religion or State-Sanctioned Child Abuse?"
An online article relating 1998-2001 cases in which the religious beliefs of the parents influence the health and welfare of their children.
Civics, Standard 8: Understands the central ideas of
American constitutional government and how this form of government
has shaped the character of American society.
United States History, Standard 4: Understands how political, religious
and social institutions emerged in the English colonies.
Historical Understanding, Standard 2: Understands the historical
Civics, Standard 8, Grades 9-12: Knows how the
creation of American constitutional government was influenced by
the central ideas of the natural rights philosophy (e.g., all persons
have the right to life, liberty, property, and the pursuit of happiness;
the major purpose of government is to protect those rights).
United States History, Standard 4, Grades 7-8: Understands the
role of religion in the English colonies (e.g., the evolution of
religious freedom, treatment of religious dissenters such as Anne
Hutchison, the concept of the separation of church and state).
United States History, Standard 4, Grades 9-12: Understands characteristics
of religious development in colonial America (e.g., the presence
of diverse religious groups and their contributions to religious
freedom; the political and religious influence of the Great Awakening;
the major tenets of Puritanism and its legacy in American society;
the dissension of Anne Hutchison and Roger Williams, and Puritan
objections to their ideas and behavior).
Historical Understanding, Standard 2, Grades 9-12: Analyzes the
values held by specific people who influenced history and the role
their values played in influencing history; Understands how the
past affects our private lives and society in general.
Economics students could study Supreme Court decisions in cases
in which public monies were used for funding various private and
religious schools’ needs. Cases might include:
v. Board of Education (1947)
v. Kurtzman (1971)
v. Felton (1997)
Students are provided the opportunity to use primary sources to
develop reading skills. Language Arts, Standard 6: Uses reading
skills and strategies to understand and interpret a variety of literary
texts. Benchmark: Uses reading skills and strategies to understand
a variety of literary texts (e.g., fiction, nonfiction, myths, poems,
biographies, autobiographies, science fiction, supernatural tales,
satires, parodies, plays, American literature, British literature,
world and ancient literature).