The Constitutional Principle: Separation of Church and State
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Establishment Clause

A correspondent made the following comment:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;"
What part of the above mentions separation of church and state?

[I replied]

The religious clauses of the Bill of Rights only reinforced the church state separation that had been embodied in the unamended constitution.
The courts have focused on the religious clauses of the Bill of Rights, something that would have surprised the men who wrote those amendments, to develop the jurisprudence that has developed over the years, but that doesn't alter the fact that church state separation had been achieved with the unamended constitution.

Researched and written by Jim Allison

Establishment and Free Exercise Clauses only Reinforced Separation of Church and State.

No Power to Congress over Religion: The "Elastic Clause" and the 1st Amendment

Congressional Debates: Religious Amendments, 1789

Introduction What intent, whose intent?

Representative Tucker on the Church and State

[Correspondent added]

I read it as saying the Congress could not make any laws to prevent anyone from establishing a religion (nothing about keeping the Religion or Church from running a state or country).

[I commented]

The wording doesn't say anything about establishing a religion. It does not say Congress shall make no law establishing a religion. Rather it says Congress shall make no law respecting an establishment of religion

[Correspondent said]

It also says that they can't prevent anyone from exercising their right to go to church.

[to which I added]

There is some truth to this but that wasn't really that much of an issue in those days since many states had had -- and a few still had -- laws requiring you to go to church and/or support religion at the time of the framing of the Constitution and later the Bill of Rights. Don't forget, the Establishment clause works to separate religion (church) and Government, (state). Thus separating the civil government from religion and religion from the civil government.

Introduction (Original and Early State Constitutions)


Additional Information:

When we turn from religions liberty to the repudiation of special state aid, we enter a more complicated area. That section of Puritanism which championed religious liberty in the seventeenth century had divided into a right and left wing as regards the relation of the church to the state, a division which was important: in Witherspoon's day and also in ours.

The left wing held for a rigid separation of church and state, based on a theological compartmentalization of the spheres of creation (or nature) and of redemption (or grace) The state belonged to the sphere of nature and was to be shaped solely by natural law with no regard for Scripture or church. There could he no such thing as a "Christian state." There should be no religious tests for the franchise and no ecclesiastical intervention in political matters. The state, on the other hand, most respect the sphere of the church and redemption as outside its jurisdiction. Such was the sscheme of Roger Williams in Rhode Island, and of John Lilburne and John Goodwin in Old England. This became the main stream of Baptist thought in England and the colonies and has remained so ever since.

A different but equally important pattern of thought had emerged at the Westminister Assembly, especially m the manifesto of the Congregational minority there. It was actually put into effect in the 1650's by Cromwell, but was then of course rejected at the Restoration of the Stuarts and the old episcopal establishment. Like the separationists, this scheme fervently supported religious liberty. Cromwell's regime gave greater scope to religious liberty than any other major European state previously had done. But this tradition refused to give up the notion of the bearing of Christian revelation on political life. Cromwell conceived his government to be generically Christian, but without giving state aid to any ecclesiastic constitution preferentially. As he administered the pariah system, benefices were held by ministers of Congregational, Presbyterian, Baptist and Episcopal persuasions indifferently. To this extent it was multiple establishments, based on the novel conception of a number of equal and independent denominations cooperating to shape Christian nation. The state represented all collectively and equally on the basis of what was called "the common light of Christianity."

The state constitutions of Massachusetts, Connecticut, New Hampshire sad Maryland represented substantially this position in the 1780's. Public provision conld be made for school teachers and religious ministrations or whatever denomination the several towns might wish and in some eases at least, dissenting minorities were exempt from taxation. Nearly half of the states of the new republic maintained multiple establishments of this general type and the Congress provided something of the same sort for the Northwest Territory of which Five mid-Western states have since been erected.

In Virginia, on the other hand where the Anglican establishment bad been less generous to dissenters than the Congregationalists of New England, it was rather the radical separationist view which triumphed under the leadership of Madison and Jefferson. And this Virginia struggle was the immediate background of the drafting of the First Amendment.

Where do the American Presbyterians fit into this picture? Although they rejected state support or church ministrations their general outlook seems still to have been that of the Cromwellian "common light of Christianity." If we are to take Witherspoon's lectures on moral philosophy as a commentary on his preface to the Form of Government, the repudiation of special state aid does not imply a strict separationism of the Roger Williams or Baptist type. Whereas it is one of the most important duties of the civil magistrate to protect the rights of conscience, he is also, in Witherspoon's view duty bound to punish profanity and impiety. He should encourage piety by his own example, attending to public and private worship, avoiding swearing and blasphemy.(5) In Witherspoon's mind, the state was still called to give aid to Christianity in general in these ways. It was not expected to be neutral as between the religious and the irreligious. And, in. his discussions of the system of state aid for public worship suiting the great body of citizens with full liberty for dissenters, Witherspoon observes mildly, "there is much reason for this" Clearly Witherspoon's devotion to the mechanism of separation is vastly less intense than any commitment to religious liberty. The main point is to secure freedom and non-preferential treatment for all religious bodies and views. Separation was valued, not as an end in itself, but, as a means to the end of religions liberty.


(5) Lectures on Moral Philosophy (ed. Collins), pp. 111-13.

(Source of Information:

Excerpt from John Witherspoon on Church and State, by James Hastings Nichols. Journal of Presbyterian History, 42, (1964) pp 171-73)


"Congress (which now means any level of government) shall make no law RESPECTING [touching, helping, supporting touching upon, touching, aiding, hindering, applying to, have to do with, etc] an ESTABLISHMENT [institution] of RELIGION [any religious sect, society, denomination, religion], . . . "

The use of public monies, the taxing of individuals to support religion was considered a form of religious establishment at the time of the founding of this nation.


Alexander Hamilton defined establishment of religion as the government support and protection of religion.

(Source of Information:

"Remarks on the Quebec Bill," in Hamilton Papers, 1:169-70.)


[F]or the men who wrote the Religion Clauses of the First Amendment the 'establishment' of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity.


Of the eleven states that ratified the First Amendment, nine (counting Maryland) adhered to the viewpoint that support of religion and churches should be voluntary, that any government financial assistance to religion constituted an establishment of religion and violated its free exercise.

(Source of Information:

The First Freedoms, Church and State in America to the Passage of the First Amendment. Thomas J. Curry. Oxford University Press. (1986) pp 202 - 222)


The First Amendment bans laws respecting an establishment of religion. Most of the framers of that amendment very probably meant that government should not promote, sponsor, or subsidize religion because it is best left to private voluntary support for the sake of religion itself as well as for government, and above all for the sake of the individual. Some of the framers undoubtedly believed that government should maintain a close relationship with religion, that is, with Protestantism, and that people should support taxes for the benefit of their own churches and ministers. The framers who came from Massachusetts and Connecticut certainly believed this, as did the representatives of New Hampshire, but New Hampshire was the only one of these New England states that ratified the First Amendment. Of the eleven states that ratified the First Amendment, New Hampshire and Vermont were probably the only ones in which a majority of the people believed that the government should support religion. In all the other ratifying states, a majority very probably opposed such support. But whether those who framed and ratified the First Amendment believed in government aid to religion or in its private voluntary support, the fact is that no framer believed that the United States had or should have power to legislate on the subject of religion, and no state supported that power either.

( Source of Information:

The Establishment Clause, Religion and the First Amendment, By Leonard W Levy, page 146-147)


In recent discussions of religious freedom and Church-separation in the United States attention has been so much centered constitutionally on the Bill of Rights that the importance of this Provision in the original Constitution as a bulwark of Church-State separation has been largely overlooked. As a matter of fact it was and is important in preventing religious tests for Federal office--a provision later extended to all the states. It went far in thwarting any State Church in the United States; for it would be almost impossible to establish such a Church, since no Church has more than a fifth of the population. Congress as constituted with men and women from all the denominations could never unite in selecting any one body for this privilege. This has been so evident from the time of the founding of the government that it is one reason why the First Amendment must be interpreted more broadly than merely as preventing the state establishment of religion which had already been made almost impossible.

Source of Information:

Church And State in The United States, VOLUME I, Anton Phelps Stokes, D.D., LL.D, Harper & Brothers Publishers (1950) pg 527.


One could say that the following words were designed to prevent that very thing:

"Congress shall make no law respecting an establishment of religion,..."

That the above words would prevent any supporting, be it financial or non-financial, and protection of any religion, sect, religious society, denomination, etc. It would not hinder religion but would not aid it either.


The Separation clause:

ARTICLE VI, SECTION (or paragraph) III

but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

The reinforcement of that separation clause:

ARTICLE I (amendment 1)

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


Study Guide for Separation of Church and State

A Study Guide for the Words/Concept: "Separation of Church and State"


During House debate, Madison told his fellow Members:

Mr. MADISON said he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforced the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. Whether the words are necessary or not, he did not mean to say, but they had been required by some of the state conventions, who seemed to entertain an opinion, that under the clause of the Constitution, which gave power to Congress to make all laws necessary and proper to carry into execution the constitution, and the laws made under it, enabled them to make laws of such a nature as might infringe the rights of conscience, and establish a national religion; to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit.

( Source of Information:

1 Annals of Congress 730 (August 15, 1789).


[NOTE: Don't read too much into Madison's use of the word national. Madison viewed any union between church and state as establishing a state or national religion. For example, Madison viewed Chaplains in Congress as establishing a national religion. Documentation for this can be provided, in fact, it will be a future web site article.


That his conception of ''establishment'' was quite broad is revealed in his veto as President in 1811 of a bill which in granting land reserved a parcel for a Baptist Church in Salem, Mississippi; the action, explained President Madison, ''comprises a principle and precedent for the appropriation of funds of the United States for the use and support of religious societies, contrary to the article of the Constitution which declares that 'Congress shall make no law respecting a religious establishment.''

( Source of Information:

The Writings of James Madison (G. Hunt. ed.) 132-33 (1904).


Madison's vetoes: Some of The First Official Meanings Assigned to The Establishment Clause

References to Madison's "Detached Memoranda"

How and why it applies to this topic For the text please see: Excerpts from James Madison's Detached Memoranda (written after 1817)

Excerpts from Madison's Detached Memoranda.

What is significant with respect to the date of its writing is the Madison's "Detached Memoranda" interprets the Constitution and the Bill of Rights and, unlike the Declaration of Independence, does not rest exclusively on the laws of nature or nature's God, on Madison own "Memorial and Remonstrance", or on Jefferson's Virginia Statute for Religious Freedom, although all are reported, confirmed, and defended. It would seem, therefore that the "Detached Memoranda" would be the best source for determining the intended meaning of the "religion" clauses of the First Amendment (and the provision of article VI of the Constitution forbidding religious test for public office) at least by the primary draughtsman of both the Constitution and First Amendment.

The "Detached Memoranda" considers eight issues relating to religion that have reached the Supreme Court in one way or another since the Constitution was adopted: (1) ecclesiastical monopolies; (2) incorporation of churches; (3) grants of public land to churches; (4) tax exemption of religious entities; (5) the Deity in government documents; (6) congressional chaplaincies; (7) military chaplaincies; and (8) religious proclamations by the government.

( Source of Information:

Pfeffer, Leo, "Madison's ‘Detached Memoranda': Then and Now." The Virginia Statue for Religious Freedom, Its Evolution and Consequences in American History, Edited by Merrill D. Peterson and Robert C. Vaughan, Cambridge University Press (1988) pp 286, 87.


Madison's views were no doubt influenced by the fight in the Virginia legislature in 1784-1785 in which he successfully led the opposition to a tax to support teachers of religion in Virginia and in the course of which he drafted his ''Memorial and Remonstrance against Religious Assessments'' setting forth his thoughts. Id. at 183-91; I. Brant, James Madison--The Nationalist 1780-1787, 343-55 (1948).

Acting on the momentum of this effort, Madison secured passage of Jefferson's ''Bill for Religious Liberty''. Id. at 354; D. Malone, Jefferson the Virginian 274-280 (1948).

The theme of the writings of both was that it was wrong to offer public support of any religion in particular or of religion in general.


JULY 23, 1812

The second of these reasons is, 'the sinful character of our nation'. Notwithstanding the prevalence of Religion, which I have described, the irreligion, and the wickedness, of our land are such, as to furnish a most painful and melancholy prospect to a serious mind. We formed our Constitution without any acknowledgement of GOD; without any recognition of his mercies to us, as a people, of his government, or even of his existence. The Convention, by which it was formed, never asked, even once, his direction, or his blessing upon their labours. Thus we commenced our national existence under the present system, without GOD. I wish I could say, that a disposition to render him the reverence, 'due to his' great 'Name', and the gratitude, demanded by his innumerable mercies, had been more public, visible, uniform, and fervent.

At the same time I have no hesitation to say, that 'the eagerness, with which public offices are hunted for', and the sacrifices of principle and conscience, which, as we have but too much reason to believe, are made, in order to acquire them, constitute a great and dreadful sin; and are a deep brand upon the moral character of our country....

( Source of Information:

A discourse in two parts : delivered July 23, 1812, on the public fast, in the chapel of Yale College by Timothy Dwight, D.D.L.L.D., President of that Seminary; Published at the request of the students, and others; New Haven, Published by Howe and Deforest; Sold also by A.T. Goodrich and Co. No, 124, Broadway, New-York; Printed by J.Seymour, 49, John-street, New-York, p. 40)

A Discourse in Two Parts, Reverend Timothy Dwight, 2nd ed. (Boston: Flagg & Gould, 1813), p 24. The Rhetoric and Reality of the "Christian Nation" Maxim in American Law, 1810-1920, By Steven Keith Green, an unpublished Ph. D. Dissertation submitted to the Faculity of the University of North Carolina at Chapel Hill (1997) p 1)


JULY 10, 1822

I observe with particular pleasure the view you have taken of the immunity of Religion from civil jurisdiction, in every case where it does not trespass on private rights or the public peace. This has always been a favorite principle with me; and it was not with my approbation, that the deviation from it took place in Congs. when they appointed Chaplains, to be paid from the Natl Treasury. It would have been a much better proof to their Constituents of their pious feeling if the members had contributed for the purpose, a pittance from their own pockets. As the precedent is not likely to be rescinded, the best that can now be done, may be to apply to the Constn. the maxim of the law, de minimis non curat.

There has been another deviation from the strict principle in the Executive Proclamations of fasts & festivals, so far, at least, as they have spoken the language of injunction, or have lost sight of the equality of all religious sects in the eye of the Constitution.

Whilst I was honored with the Executive Trust I found it necessary on more than one occasion to follow the example of predecessors. But I was always careful to make the Proclamations absolutely indiscriminate, and merely recommendatory; or rather mere designations of a day, on which all who thought proper might unite in consecrating it to religious purposes, according to their own faith & forms. In this sense, I presume you reserve to the Gov' a right to appoint particular days for religious worship throughout the State, without any penal sanction enforcing the worship.

I know not what may be the way of thinking on this subject in Louisiana. I should suppose the Catholic portion of the people, at least, as a small & even unpopular sect in the U.S., would rally, as they did in Virga when religious liberty was a Legislative topic, to its broadest principle.

Notwithstanding the general progress made within the two last centuries in favour of this branch of liberty, & the full establishment of it, in some parts of our Country, there remains in others a strong bias towards the old error, that without some sort of alliance or coalition between Govt. & Religion neither can be duly supported. Such indeed is the tendency to such a coalition, and such its corrupting influence on both the parties, that the danger cannot be too carefully guarded ags'. And in a Gov' of opinion, like outs, the only effectual guard must be found in the soundness and stability of the general opinion on the subject. Every new 6 successful example therefore of a perfect separation between ecclesiastical and civil matters, is of importance. And I have no doubt that every new example, will succeed, as every past one has done, in shewing that religion & Gov' will both exist in greater purity, the less they are mixed together.

It was the belief of all sects at one time that the establishment of Religion by law, was right & necessary; that the true religion ought to be established in exclusion of every other; and that the only question to be decided was which was the true religion. The example of Holland proved that a toleration of sects, dissenting from the established sect, was safe & even useful. The example of the Colonies, now States, which rejected religious establishments altogether, proved that all Sects might be safely & advantageously put on a footing of equal & entire freedom.... We are teaching the world the great truth that Govs do better without Kings & Nobles than with them. The merit will be doubled by the other lesson that Religion flourishes in greater purity, without than with the aid of Gov'.

( Source of Information:

Excerpt of letter to Edward Livingston from James Madison, July 10, 1822. Letters and Other writings of James Madison, in Four Volumes, Published by Order of Congress. VOL. III, J. B. Lippincott & Co. Philadelphia, (1865), pp 273-276. James Madison on Religious Liberty, Robert S.Alley, Prometheus Books, Buffalo, N.Y. (1985) pp 82-83)



Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

An Overview

Scholarly Commentary . . . The explication of the religion clauses by the scholars has followed a restrained sense of their meaning. [Joseph] Story, who thought that ''the right of a society or government to interfere in matters of religion will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice,'' 6 looked upon the prohibition simply as an exclusion from the Federal Government of all power to act upon the subject. ''The situation . . . of the different states equally proclaimed the policy, as well as the necessity of such an exclusion. In some of the states, episcopalians constituted the predominant sect; in others presbyterians; in others, congregationalists; in others, quakers; and in others again, there was a close numerical rivalry among contending sects. It was impossible, that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendancy, if the national government were left free to create a religious establishment.

The only security was in extirpating the power. But this alone would have been an imperfect security, if it had not been followed up by a declaration of the right of the free exercise of religion, and a prohibition (as we have seen) of all religious tests. Thus, the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions; and the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship.'' 7

''Probably,'' Story also wrote, ''at the time of the adoption of the constitution and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.'' 8 The object, then, of the religion clauses in this view was not to prevent general governmental encouragement of religion, of Christianity, but to prevent religious persecution and to prevent a national establishment. 9

This interpretation has long since been abandoned by the Court, beginning, at least, with Everson v. Board of Education, 10 in which the Court, without dissent on this point, declared that the Establishment Clause forbids not only practices that ''aid one religion'' or ''prefer one religion over another,'' but as well those that ''aid all religions.'' Recently, in reliance on published scholarly research and original sources, Court dissenters have recurred to the argument that what the religion clauses, principally the Establishment Clause, prevent is ''preferential'' governmental promotion of some religions, allowing general governmental promotion of all religion in general. 11 The Court has not responded, though Justice Souter in a major concurring opinion did undertake to rebut the argument and to restate the Everson position. 12

[Footnote 6] 3 J. Story, Commentaries on the Constitution of the United States 1865 (1833).

[Footnote 7] Id. at 1873.

[Footnote 8] Id. at 1868.

[Footnote 9] For a late expounding of this view, see T. Cooley, General Principles of Constitutional Law in the United States 224-25 (3d ed. 1898).

[Footnote 10] 330 U.S. 1, 15 (1947). Establishment Clause jurisprudence since, whatever its twists and turns, maintains this view.

[Footnote 11] Wallace v. Jaffree, 472 U.S. 38, 91 (1985) (then-Justice Rehnquist dissenting). More recently, dissenters, including now-Chief Justice Rehnquist, have appeared reconciled to a ''constitutional tradition'' in which governmental endorsement of religion is out of bounds, even if it is not correct as a matter of history. See Lee v. Weisman, 112 S. Ct. 2649, 2678, 2683-84 (1992) (Justice Scalia, joined by the Chief Justice and Justices White and Thomas, dissenting).

[Footnote 12] Lee v. Weisman, 112 S. Ct. 2649, 2667 (1992) (Justice Souter, joined by Justices Stevens and O'Connor, concurring).


. . . Madison's Memorial and Remonstrance, written against a Virginia bill to support Christian teachers, warned that if you "establish Christianity, in exclusion of all other Religions," you cannot deny government the power to favor one sect over the others. 61 It was that secondary consequence, not the first, that people feared.

Subsequently, when Madison sponsored the amendments that became the Bill of Rights, he explained that the Establishment Clause would quell public fear that "one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform." 62 Because Christian religions were the only faiths that could pose this threat, and the only religions established in any states, the amendment was written primarily with Christianity in mind.

In 1833, Justice Joseph Story published constitutional commentaries that were hailed, when they first appeared, as the authoritative reference on the American Constitution that Sir William Blackstone's volumes were on English common law. Story's study of the period of ratification convinced him that "the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as it is not incompatible with the private rights of conscience, and the freedom of religious worship. '' 63 Under this constitutional mandate, Story found that an affirmative "duty of supporting religion, and especially the Christian religion" was contemplated by the amendment so long as no attempt is made "to force the consciences of other men, or to punish them for worshipping God in the manner, which, they believe, their accountability to him requires." 64 He contended that any "attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation." 65 "The real object of the amendment," Story concluded, "was not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which uld give to an hierarchy the exclusive patronage of the national government" 66 Under this formulation, states were free to establish an official religion and go quite far in support of that faith. While noting that in different states Episcopalians, Presbyterians, Congregationalists, and Quakers were predominant, Story said the amendment prevented the danger of "perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendancy, if the national government were left free to create a religious establishment." 67

Today, this viewpoint would engender the "universal disapprobation, if not universal indignation" Story claimed the modern position would have fostered at the time of ratification. Yet, as originalists would have us do, we would have to reestablish that two-centuries-old understanding, to the exclusion of all that has passed in the interim, and permit Christianity to have a favored position over other religions as long as no one is forced to profess faith in it and no religious persecution is sanctioned by government acts. Even with the incorporation doctrine, applying the First Amendment's tenets to the states, particular religions would be allowed to be fostered by a state with the same provisos against persecution and forced faith. It would not matter that by 1833, the same year Story's commentaries were published, the last of the states had eliminated mandatory support for Christian education by popular referendum. It would not matter that immigrants came to the United States generations ago to pursue the promise of a religious freedom that accords with modern understandings, not the popular understandings of 1791 described by Story. It would not matter that reason tells us the fear of religious strife between Christian religions that motivated the ratifiers of the First Amendment will also occur between the Christian and other religions and must equally be guarded against. It would not matter that a return to yesteryear's intentions would work a. oral monstrosity of the sort that the Court in the 1819 Sturges v. Crowinshield 68 decision claimed the courts must avoid in construing the Constitution.

61. The Mind of the Founder 7 (M. Meyer ed. 1981).

62.1 Annals of Cong. 758 (Aug. 15, 1789).

63. J. Story, Commentaries on the Constitution of the United States § 988, at 700 (1987 reprint of 1833 ed. ).

64. Id. § 990, at 700-01.

65. Id. § 988, at 700.

66. Id. § 991, at 701.

67. Id. § 992, at 702.

68. 17 U.S. (4 Wheat.) 122 (18197. V

( Source of Information:

The Bill Of Rights &: the Politics of Interpretation. Robert S. Peck, West Publishing Company, (1992) pp. 174-175 )


For additional insight & understanding of the Joseph Story aspect of this, see:

Is Christianity part of English Common Law

Is this a Christian nation?

Joseph Story's ongoing war with Thomas Jefferson

Joseph Story's Commentaries of the Constitution

Two Views: James Madison's and Joseph Story's





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 [p*16] 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." Reynolds v. United States, supra, at 164.

[Everson v. Board of Education of the Township of Ewing, 330 U.S. 1(1947)]


Two of the church-state decisions of the Supreme Court that are widely considered landmark decisions in church-state jurisprudence dealt with public money and religiously based nonprofit organizations. The cases are Everson v. Board of Education (1947) and Lemon v. Kurtzman (1971), and the religiously based nonprofits were K-12 schools. The Everson case dealt with a New Jersey law that established a program of state aid for the transportation of children to religiously based schools and public schools alike. The Supreme Court's 5-4 decision established two legal principles crucial for our purposes. [The 5-4 decision came about as a result of the holding reached by the majority. --See below -- It was 9-0 with regards to the definition of what the Establishment Clause meant] The first one is that the First Amendment's establishment clause ("Congress shall make no law respecting an establishment of religion . . .") means no government aid may be given in support of religion, even aid given not to any one religious group but in support of religion generally. In an often-quoted passage, justice Hugo Black, writing for the Court majority, stated: "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. (1) A few sentences later Black added, "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.' (2) With those words, the Supreme Court adopted the legal doctrine of no aid to religion, either to specific religious groups or to religion generally.

Somewhat surprisingly the Supreme Court held, in spite of the no-aid doctrine it articulated, that New Jersey could pay for the transportation of children to religious schools. Black's opinion acknowledged: "It is undoubtedly true that children are helped to get to church schools. There is even a possibility that some of the children might not be sent to the church schools if the parents were compelled to pay their children's bus fares out of their own pockets. (3) This leads to an obvious question: How did justice Black square the giving of aid for the transportation of children to religiously based schools with his own just-enunciated no-aid doctrine! He did so by distinguishing between programs that would contribute "money to the schools" or would "support them" and those, such as the one that was being challenged in that case, "indisputably marked off from the religious function" of schools.(4) He held that bus transportation was clearly separable from the religious mission of the schools and similar to general public services such as police and fire protection and sewage disposal. Thus it could be supported by public funds.

The Supreme Court thereby established a second crucial legal doctrine, namely, that while public money may not go to support religious programs or organizations, it may go to provide services not directly related to the religious mission of religious organizations. This was the beginning of the legal doctrine that separates the sacred and the secular aspects of a religiously based organization, and holds that public money may flow to its secular, but not its sacred aspects.

(Source of Information:

When Sacred and Secular Mix: Religious Nonprofit Organizations and Public Money, By Stephen V Monsma, Rowman & Littlefield Publishers, Inc (1996) Pages 30-36 )


As Being Defined in 1993


Wall of Separation

The basic purpose of the Establishment Clause is to erect a "wall of separation" between church and state. The Clause clearly forbids the federal government or a state government from:

1. Establishing a church;

2. Passing laws which aid one religion, aid all religions, or prefer one religion over another;

3. Forcing or influencing a person to go to or to remain away from church against his will or force a person to profess a belief or disbelief in any religion;

4. Punishing a person for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance;

5. Levying a tax to support religious activities or institutions, to teach or practice religion;

6. Participating openly or secretly in the affairs of any religious organization or group.

Neutrality Principle

The Clause does not forbid every action by government that favors or benefits religion. A general principle governing this area of the law is that the First Amendment requires the state to be neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used to handicap religions than it is to favor them.

1. A state or federal statute granting direct financial assistance to a religiously-oriented institution (such as a school or hospital) must be examined under the three-prong test described above. Frequently, such a direct grant violates the Establishment Clause. However, other kinds of benefits and aids (such as transportation subsidies and the loan of secular textbooks) to students attending religiously-oriented private schools have been upheld as constitutional.

2. A tax exemption that does not single out a particular church or religious group is considered to be a permissible state accommodation of religion.

3. The grant of a tax deduction for educational expenses of students attending parochial and public schools which predominantly benefit the parents of parochial school children does not violate the Establishment Clause.

4. The grant of funds to church-related universities and colleges in which the secular functions within the institutions can be easily separated from the religious functions does not violate the Religion Clause.

5. A public school program allowing students "released time" to participate in religious instructions outside the public schools' premises is an accommodation of religion and not a violation of the Religion Clauses of the First Amendment. However, a public school system may not include prayer and Bible reading as part of its daily opening exercises in the classrooms.

[Blond's Constitutional Law, By Neil C. Blond, Revised Edition Prepared by Brett I. Harris, Robert M. Novick Sulzburger & Graham Publishing, LTD., (1993) pp.391-393


As Being Defined in 1997-98


A. Background: The basic purpose of the Establishment Clause is, in the words of Thomas Jefferson, to erect "a wall of separation between church and state." However, the image "wall" does not help very much in determining what types of state actions violate the Clause.

Specific prohibitions: There are some types of governmental actions which clearly late the Establishment Clause. The majority catalogued some of these in Everson v Bd of Education, supra:

a. No official church: Neither a state nor the federal government may set up an official church.

b. No coercion: Government may not force [or] 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.

c. Punishment for beliefs: No one may be "punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance."

d. No preference: Government may not prefer one religion over another. Also, government may not prefer religion to non-religion.

e. Participation: Government may not participate in the affairs of religious organizations, and such organizations may not participate in the affairs of government.

Note: Some of these prohibitions (e.g., the right not to be punished for one's religious beliefs) are also protected by the Free Exercise Clause, perhaps even more directly than by the Establishment Clause. Nonetheless, the Everson Court purported to be listing solely those prohibitions stemming from the Establishment Clause.

Source of Information:

Emanuel Law Outlines, Constitutional Law, Steven L. Emanuel, 15th Edition, Emanuel Publishing Corp. Larchmont, N Y (1997-98) pp. 684-85.


Over many years and many cases mainly involving religion in public schools, the Supreme Court has developed three "tests" to be applied to religious practices for determining their constitutionality under the Establishment Clause.

The Lemon Test

Based on the 1971 case of Lemon v. Kurtzman, 403 U.S. 602, 612-13, the Court will rule a practice unconstitutional if:

1.It lacks any secular purpose. That is, if the practice lacks any non-religious purpose.

2.The practice either promotes or inhibits religion.

3.Or the practice excessively (in the Court's opinion) involves government with a religion.

The Historical Test

Based on Marsh v. Chambers, 463 U.S. 783 (1983). Requires a unambiguous and unbroken history of more than 200 years. BTW, the history that was employed by the Court in Marsh v. Chambers was flawed. See:

Chaplains and Congress

Chief Justice Burger, I Would Like You To Meet Mr. Madison


The Political Move That Backfired

The Endorsement Test

Drawing from the 1989 case of Allegheny County v. ACLU, 492 U.S. 573, the practice is examined to see if it unconstitutionally endorses religion by conveying "a message that religion is 'favored,' 'preferred,' or 'promoted' over other beliefs."

The Cercion Test

Based on the 1992 case of Lee v. Weisman, 505 U.S. 577 the religious practice is examined to see to what extent, if any, pressure is applied to force or coerce individuals to participate. The Court has defined that: "Unconstitutional coercion occurs when:
(1) the government directs
(2) a formal religious exercise
(3) in such a way as to oblige the participation of objectors."


Here Is a Good Example of Three of The Above Tests Being Applied:


Fails Endorsement Test


The Pledge, as currently codified, is an impermissible government endorsement of religion because it sends a message to unbelievers "that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." Lynch, 465 U.S. at 688 (O'Connor, J., concurring). . . Consequently, the policy and the Act fail the endorsement test.

Newdow v. U.S. Congress, F3d. 597 (9th Cir. 2002) p. 607


Fails Coercion Test


Similarly, the policy and the Act fail the coercion test.

Newdow v. U.S. Congress, F3d. 597 (9th Cir. 2002) p. 608


Fails First Prong of The Lemon Test


Because the Act fails the purpose prong of Lemon, we need not examine the other prongs. Lemon, 403 U.S. at 612-14.

Newdow v. U.S. Congress, F3d. 597 (9th Cir. 2002) p. 611


Act And School District Policy Both Fail Lemon, Endorsement And Coercion Tests


Similarly, the school district policy also fails the Lemon test. Although it survives the first prong of Lemon because, as even Newdow concedes, the school district had the secular purpose of fostering patriotism in enacting the policy, the policy fails the second prong. . . Therefore the policy fails the effects prong of Lemon, and fails the Lemon test. In sum, both the policy and the Act fail the Lemon test as well as the endorsement and coercion tests.

Newdow v. U.S. Congress, F3d. 597 (9th Cir. 2002) P. 611



[10] In conclusion, we hold that (1) the 1954 Act adding the words "under God" to the Pledge, and (2) EGUSD's policy and practice of teacher-led recitation of the Pledge, with the added words included, violate the Establishment Clause. The judgment of dismissal is vacated with respect to these two claims, and the cause is remanded for further proceedings consistent with our holding. Plaintiff is to recover costs on this appeal. REVERSED AND REMANDED.

Newdow v. U.S. Congress, F3d. 597 (9th Cir. 2002) p. 612


Therefore the policy fails the effects prong of Lemon, and fails the Lemon test. In sum, both the policy and the Act fail the Lemon test as well as the endorsement and coercion tests.12

Newdow v. U.S. Congress, F3d. 597 (9th Cir. 2002) P. 611



12 We recognize that the Supreme Court has occasionally commented in dicta that the presence of "one nation under God " in the Pledge of Allegiance is constitutional. See Allegheny, 492 U.S. at 602-03; Lynch, 465 U.S. at 676; id. at 693 (O'Connor, J., concurring); Abington Sch. Dist. v. Schempp, 374 U.S. 203, 303- 04 (1963) (Brennan, J., concurring); id. at 306-08 (Goldberg, J., joined by Harlan, J., concurring); Engel, 370 U.S. at 435 n. 21. However, the Court has never been presented with the question directly, and has always clearly refrained from deciding it. Accordingly, it has never applied any of the three tests to the Act or to any school policy regarding the recitation of the Pledge. That task falls to us, although the final word, as always, remains with the Supreme Court.

The only other United States Court of Appeals to consider the issue is the Seventh Circuit, which held in Sherman v. Community Consolidated School District 21, 980 F.2d 437 (7th Cir. 1992), that a policy similar to the one before us regarding the recitation of the Pledge of Allegiance containing the words "one nation under God" was constitutional. The Sherman court first stated that: If as Barnette holds no state may require anyone to recite the Pledge, and if as the prayer cases hold the recitation by a teacher or rabbi of unwelcome words is coercion, then the Pledge of Allegiance becomes unconstitutional under all circumstances, just as no school may read from a holy scripture at the start of class. 980 F.2d at 444. It then concludes, however, that this reasoning is flawed because the First Amendment "[does] not establish general rules about speech or schools; [it] call[s] for religion to be treated differently." Id. We have some difficulty understanding this statement; we do not believe that the Constitution prohibits compulsory patriotism as in Barnette, but permits compulsory religion as in this case. If government-endorsed religion is to be treated differently from government-endorsed patriotism, the treatment must be less favorable, not more.

The Seventh Circuit makes an even more serious error, however. It not only refuses to apply the Lemon test because of the Supreme Court's criticism of that test in Lee, but it also fails to apply the coercion test from Lee or the endorsement test from Lynch. Circuit courts are not free to ignore Supreme Court precedent in this manner. Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989) ("If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions."). Instead of applying any of the tests announced by the Supreme Court, the Seventh Circuit simply frames the question as follows: "Must ceremonial references in civic life to a deity be understood as prayer, or support for all monotheistic religions, to the exclusion of atheists and those who worship multiple gods?" 980 F.2d at 445. Relying in part on Supreme Court dicta regarding the Pledge, the court answers this question in the negative, determining that "under God" is a statement which, taken within its context in the Pledge, is devoid of any significant religious content, and therefore constitutional. Id. at 447- 48. At the very least, as discussed above in the text, the Supreme Court requires that any policy alleged to be an Establishment Clause violation must be held to the scrutiny of the established tests. Our application of all of the tests compels the conclusion that the policy and the Act challenged here violate the Establishment Clause of the Constitution. Thus, we must respectfully differ from the Seventh Circuit.

Newdow v. U.S. Congress, F3d. 597 (9th Cir. 2002) P. 611-612

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