What is the (No) Establishment Clause?

Introduction
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.

Key Concepts

• Religious liberty, or freedom of conscience, is an inalienable right.
  
  
• 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.

First Principles

• 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.

First Moments
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 religious diversity.

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.

Procedure

1. 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.
   
   
   • The American concept of freedom of conscience is rooted in the Puritans’ desire to practice their religion freely and their quest to promote religious tolerance.
     
     
   • Not every colonist was a Puritan.
   
   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.
   
   
2. Explore the meaning of the establishment clause, using the following information:
   
   
   • 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 natural right.”
     
     
   • 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.”
   
   
3. 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.
   
   
4. 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 group discussion.
   
   
   • 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 the city.
     
     
   • 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 actions.
     
     
   • 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.
     
     Decisions of the judiciary are provided for teachers.
   
   
5. Conclude 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?
   
   
6. 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 of conscience?
     
     
   • 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.

Enrichment

1. 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.
   
   
2. 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?
   
   
3. 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.”
   
   
4. 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.”

Religion 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.

Lee v. Weisman
A summary of the Supreme Court’s findings in this case.

Religious Studies 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.

"Freedom 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.

National Standards
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 perspective.

Benchmarks
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.

Interdisciplinary
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:

Everson v. Board of Education (1947)

Lemon v. Kurtzman (1971)

Agostini 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).

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