Commentary: Making sense of the Establishment Clause
Jason P. Gosselin is an attorney in Philadelphia The Freedom From Religion Foundation, a self-described organization of "free thinkers," recently sued Lehigh County over objections to the official county seal. The foundation alleges that the seal, which has been in use since 1944, violates the
Jason P. Gosselin
is an attorney in Philadelphia
The Freedom From Religion Foundation, a self-described organization of "free thinkers," recently sued Lehigh County over objections to the official county seal. The foundation alleges that the seal, which has been in use since 1944, violates the Establishment Clause of the U.S. Constitution because one of the images depicted on the seal is a cross. County officials claim the cross is not intended to promote religion but is one of several images celebrating the county's history, including the county's early Christian settlers.
The First Amendment provides that "Congress shall make no law respecting an Establishment of religion. . . ." But what does that mean? Unfortunately, it is difficult to find any clear, reliable guidance in the Supreme Court's decisions.
The court first addressed the Establishment Clause in 1947 in Everson v. Board of Education. In that case, Justice Hugo Black, channeling Thomas Jefferson, wrote that the Establishment Clause erects a "wall of separation between church and State." Notwithstanding this "wall" and what appeared to be an expansive reading of the clause, the court held it was permissible to use public money to transport students to and from Catholic schools.
In 1971, in Lemon v. Kurtzman, the court addressed a similar dispute but reached a different result, finding it unconstitutional to reimburse Catholic schools for teacher salaries. In reaching this conclusion, the court articulated a three-part test for evaluating establishment claims:
The government action must have a nonreligious purpose.
The primary effect must not advance or inhibit religious practice.
The action must not foster an excessive entanglement between government and religious affairs.
While this test seems reasonable on its face, each prong is highly subjective and has produced results that cannot be reconciled with one another. Justice William Rehnquist once noted that under Lemon a state may lend to parochial-school children geography textbooks containing maps but cannot lend maps for geography class; a state may lend textbooks on American history but cannot lend a film on George Washington or a projector to show it; a state may pay for transportation to parochial school but cannot pay for transportation from a parochial school to a local zoo for a field trip; and so on.
Some justices have favored a slightly different standard known as the endorsement test, which asks whether a reasonable observer would view the challenged government action as an endorsement of religion. Again, this seems reasonable, but it too is highly subjective and does not provide clear guidance. On the same day in 2005, for example, the Supreme Court found that a Ten Commandments display at the Texas State Capitol was permissible, but a Ten Commandments display at a Kentucky courthouse was not.
Fortunately, in recent years, some members of the court have signaled a new direction that has the potential to end perennial disputes over what constitutes an impermissible establishment whenever religious symbolism appears in the public square.
The phrase respecting an Establishment of religion may seem peculiar to some. Most of us might presume that this means the government cannot set up a church, but that it also precludes a broad array of government action short of actual establishment. The drafting history of the Establishment Clause, however, suggests that "respecting" had a different purpose entirely.
When the First Amendment was ratified in 1791, several states had established religions in one form or another. In Massachusetts, Connecticut, and New Hampshire, for example, the tradition was one of locally established religions, where each town selected its minister and denomination, usually Congregationalism. Other states, such as Maryland, South Carolina, and Georgia, had general establishments, explicitly permitting taxation to support Christian churches. The First Congress not only wanted to prevent the establishment of a national religion, but it also wanted to prevent Congress from interfering with existing establishments within the states.
Use of the word respecting, which means "with reference to" or "relating to," is precisely calibrated to address both concerns, ensuring that Congress has no authority to address the subject matter whatsoever.
Those who wish to erase any trace of religious symbolism from the public square are free to pursue that agenda. But, according to many scholars and at least two members of the current court, the Establishment Clause - understood in its proper historical context - does not command such an outcome.