“Why ‘One Nation Under God’ Still Matters: Reclaiming the First Amendment”

The United States Constitution is a living document, the bedrock of American democracy. Among its most cherished provisions is the First Amendment, which protects several fundamental freedoms, including religion, speech, press, assembly, and petition. Central to the religious liberty provisions is the Establishment Clause, a brief but powerful statement that has shaped the legal and cultural landscape of the United States for over two centuries.

The Establishment Clause reads:
“Congress shall make no law respecting an establishment of religion…”

While these words are simple, their interpretation has been anything but straightforward. The clause addresses the relationship between government and religion, aiming to prevent the state from favoring or endorsing any religion. Over the years, courts and scholars have debated its scope, leading to a rich body of legal precedent and academic commentary.

Let’s explore the origins, historical context, legal interpretations, landmark Supreme Court cases, and contemporary issues surrounding the Establishment Clause.

Historical Background

Roots in Colonial Experience

The Founding Fathers’ intent behind the Establishment Clause was heavily influenced by their experience under British rule and the religious persecution that many early American colonists fled. In England, the Church of England was the established church, and dissenters could face legal penalties, social ostracization, or worse.

In colonial America, many colonies had their own established churches. For example, Massachusetts supported the Congregational Church through tax dollars, while Virginia supported the Anglican Church. Individuals who did not belong to the established church often faced discrimination or were required to pay taxes to support a faith they did not practice.

Virginia Statute for Religious Freedom

One of the most influential precursors to the Establishment Clause was the Virginia Statute for Religious Freedom, authored by Thomas Jefferson and enacted in 1786. This statute declared that no person should be compelled to support any religious worship or ministry and emphasized freedom of conscience. Jefferson later considered this statute one of his three greatest accomplishments.

James Madison, often called the “Father of the Constitution,” was instrumental in including similar principles in the First Amendment. In his famous Memorial and Remonstrance Against Religious Assessments, Madison argued forcefully against state-sponsored religion and for a complete separation of church and state.

Text and Structure of the Clause

The Establishment Clause is part of the Religious Clauses of the First Amendment, which also includes the Free Exercise Clause:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

Together, these clauses ensure that the government cannot establish a state religion or interfere with individuals’ rights to practice their faith. While they complement each other, they can also come into tension. For example, accommodating religious practice (Free Exercise) might appear to endorse religion (Establishment), creating legal dilemmas.

Key Principles and Legal Interpretations

Over time, courts have developed several key principles to interpret the Establishment Clause:

1. Separation of Church and State

The phrase “wall of separation between church and state” comes from a letter Thomas Jefferson wrote in 1802 to the Danbury Baptist Association. While the phrase is not in the Constitution, it has become a guiding metaphor. The idea is that government and religion operate in separate spheres and must not interfere with each other.

2. Government Neutrality

The Establishment Clause demands that government remain neutral in matters of religion. This means it should neither favor one religion over another nor religion over non-religion.

3. No Coercion

The government cannot coerce individuals into participating in religious activities. This includes indirect pressure, such as mandatory prayer in public schools.

The Lemon Test

In the 1971 case Lemon v. Kurtzman, the Supreme Court established a three-part test to determine if a government action violates the Establishment Clause:

Secular Purpose: The action must have a non-religious purpose.
Primary Effect: Its primary effect must neither advance nor inhibit religion.
Excessive Entanglement: It must not result in excessive government entanglement with religion.

If a government policy or law fails any part of the Lemon Test, it is deemed unconstitutional under the Establishment Clause. While influential for decades, the Lemon Test has been criticized and eroded in recent rulings, with some justices favoring alternative frameworks.

Landmark Supreme Court Cases

Everson v. Board of Education (1947)

This was the first major Establishment Clause case. The Court upheld a New Jersey law reimbursing parents for transportation costs to religious schools, emphasizing the need for government neutrality. It also famously stated that the First Amendment erected a “wall of separation” between church and state.

Engel v. Vitale (1962)

In this landmark case, the Court struck down the practice of state-sponsored prayer in public schools, ruling it unconstitutional even if the prayer was non-denominational and voluntary. This ruling underscored that the government cannot compose official prayers for any group of the American people.

Abington School District v. Schempp (1963)

The Court held that Bible readings and the recitation of the Lord’s Prayer in public schools were unconstitutional. It affirmed the principle that public schools, as government entities, must not promote religious exercises.

Lemon v. Kurtzman (1971)

As noted earlier, this case established the Lemon Test, which became the standard for evaluating Establishment Clause cases for decades.

Wallace v. Jaffree (1985)

The Court ruled that a law mandating a moment of silence in public schools, if intended for prayer, was unconstitutional. Even subtle efforts to reintroduce religious practices in schools can violate the Establishment Clause.

Lee v. Weisman (1992)

The Court ruled that clergy-led prayer at public school graduation ceremonies violated the Establishment Clause, reinforcing the ban on coercive religious activity in public education settings.

Town of Greece v. Galloway (2014)

Here, the Court upheld the tradition of opening town meetings with prayer, noting the historical precedent for legislative prayer. The ruling emphasized that as long as the prayers were not coercive or overtly proselytizing, they were constitutional.

Kennedy v. Bremerton School District (2022)

This recent case marked a shift. The Court ruled in favor of a public high school football coach who prayed at the 50-yard line after games. The decision leaned more heavily on the Free Exercise Clause and framed the coach’s actions as private religious expression, indicating a departure from the rigid separation suggested by earlier rulings.

Controversies and Current Debates

1. Public Displays of Religion

Cases involving nativity scenes, Ten Commandments monuments, and crosses on public land have led to mixed rulings. The Court has at times allowed such displays when they are part of a broader historical or cultural presentation, but not when they are clearly religious endorsements.

2. School Choice and Vouchers

Do government-funded vouchers that parents use to send children to religious schools violate the Establishment Clause? In Zelman v. Simmons-Harris (2002), the Court upheld such a program, ruling that the funding benefited parents, not religious institutions directly.

3. Faith-Based Initiatives

Presidents from George W. Bush to Joe Biden have supported faith-based initiatives that provide government grants to religious organizations for social services. Critics argue this risks government endorsement of religion, while supporters claim it is neutral support for effective community services.

4. Religious Symbols on Public Land

In American Legion v. American Humanist Association (2019), the Court upheld a World War I memorial in the shape of a Christian cross on public land, signaling a more permissive approach to religious symbolism with historical context.

Evolving Interpretations

The Establishment Clause, like many constitutional provisions, is subject to evolving interpretations. Courts have shifted from strict separation toward a more “accommodationist” stance in some cases, allowing for religious expression in public life as long as it is not coercive or discriminatory.

This shift is partly due to changing judicial philosophies, particularly with the appointments of more conservative justices who are more sympathetic to public expressions of faith and private religious rights.

Relationship with the Free Exercise Clause

A core challenge is balancing the Establishment Clause with the Free Exercise Clause, which protects individuals’ rights to practice their religion. For instance:

Should a religious group be allowed to meet in a public school after hours?
Can government funds go to religious schools for secular services?
Can a teacher wear religious symbols in the classroom?

In each case, courts must weigh the risk of government endorsement against the rights of individuals to freely exercise their faith.

Global Perspective

The U.S. approach to religion and state is unique compared to many other nations. While some countries have official state religions, others mandate strict secularism. The Establishment Clause represents a middle path that neither supports religion through the state nor bans religious expression from the public square.

The Establishment Clause of the First Amendment is a cornerstone of American liberty. It ensures that government cannot impose religion on its citizens, a principle born from centuries of religious conflict and persecution. While its interpretation has evolved, the fundamental goal remains: protecting freedom of conscience for all.

Whether the courts emphasize separation or accommodation, the debate over where to draw the line will continue. In a pluralistic society with deep religious roots and a commitment to individual liberty, the Establishment Clause will remain central to legal and cultural discourse.