Freedom of Conscience: The Establishment and Free Exercise Clauses

The Establishment/Free Exercise Clause

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

The Establishment Clause and the Free Exercise Clause were intended by the framers to serve common values, however as applied in complex society there is tension between the two related concepts.  For example, one can argue that government providing a military chaplain for troops stationed overseas violates the Establishment Clause, yet also concede that failing to provide a chaplain violates the Free Exercise Clause rights of some troops. 

At minimum, the Establishment Clause was intended to prohibit the federal government from declaring and financially supporting a national religion, such as existed (and continues) in many other countries at the time of the nation’s founding.  Proponents of a narrow interpretation of the clause point out that the same First Congress that proposed the Bill of Rights opened its legislative day with prayer, and voted to apportion federal dollars to establish Christian missions in the Indian lands.  On the other hand, persons seeing a more robust meaning of the anti-establishment provision point to writings by Thomas Jefferson and James Madison suggesting the need to establish “a wall of separation” between church and state.

Supreme Court interpretation of the Establishment Clause does not begin until 1947 in Everson v Board of Education.  Voting 5 to 4, the Court upheld a state law that reimbursed parents for the cost of busing their children to parochial schools.  It was clear from the various opinions in Everson that if the state had reimbursed the parochial schools for the cost of providing the transportation, that it would have been found to violate the Establishment Clause.  Although in his majority opinion Justice Black wrote of the “wall of separation” that the Constitution maintains between church and state, Black viewed the aid in question of serving the state’s secular interest in getting kids “safely and expeditiously” to schools.  The case is noteworthy for its extensive discussion of the purposes of the Establishment Clause, and for the fact that all nine justices agree that the clause was intended to do far more than merely prohibit the establishment of a state religion.

Subsequent decisions make clear that the Supreme Court tends to view “the wall” separating church and state more as a shifting, porous barrier.  For example, in 1948, the Court ruled 8 -1 in McCollum v Board of Education that the practice of inviting religious instructors into public schools to give optional religious instruction violates the Establishment Clause.  Justice Black, writing for the Court, said that the practice was “unquestionably” a violation of the Establishment Clause, which created “a high and impregnable wall” between church and state. The McCollum decision was the first victory ever for a plaintiff challenging state religious practices under the Establishment Clause.

McCollum was distinguished in the 1952 case of Zorach v Clauson, raising the question of the constitutionality of off-premises religious instruction.  In Zorach, the Court upheld the practice of giving public school students “release time” so that they could attend religious programs in churches in synagogues.  Writing for the 6-3 Court majority in Zorach, Justice Douglas said the Constitution does not require “callous indifference to religion.”  In dissent, Justice Jackson argued that the state was using the public school as “a temporary jail” for students who chose not to attend the religion classes.

The question of school-sponsored prayer has proven highly controversial.  In the landmark case of Engel v Vitale in 1962, the Court ruled that New York’s practice of beginning school days with a prayer drafted by school officials violated the Establishment Clause.  This is the case, the Court said, whether or not students are given the option of not participating in the prayer.  Following Engel, the Court has faced a whole series of prayer-related cases in the public school context raising issues such a prayer in special circumstances (e.g., graduation ceremonies), periods for silent meditation or silent prayer, and student-initiated prayer.  In general, the Court has demonstrated a willingness to strike down any practices that might be likely to be perceived either as coercive or as a state endorsement of religion.

Case Resources