Church, State, and the First Amendment: Understanding the Establishment Clause

When we talk about separating church and state, people often think the First Amendment guarantees a clear divide between these two entities, but the way it's implemented in the real world is just as messy as a holiday dinner debate about politics and religion.

Although the first amendment is only one sentence long, ever since it was ratified in 1791, people have been debating the true meaning of all the clauses it contains. The court system has the role of defining what certain laws, or the constitution, mean in certain cases. When they define the meaning of these laws, they create what is called common law. This common law is unwritten law that is established through judicial decisions rather than statutes (regular laws). In other words, every time the courts interpret the First Amendment in a case, they set a precedent that shapes how the law is applied in future disputes. Over time, these rulings have clarified—or sometimes complicated—what the Establishment Clause truly protects.

The part of the first amendment we'll be talking about today says, "Congress shall make no law respecting an establishment of religion." So why have we been asking questions about what this tiny part of the amendment means for 200 years? Well, because this clause is incredibly broad and society is constantly changing. As the public's view of different issues change, we'll want to reexamine some of these questions to make sure our interpretation of the law isn't too outdated.

The Establishment Clause prohibits the government from "respecting an establishment of religion," or in other words, favoring one religion over another. The framers of our constitution were particularly concerned with freedom of religion due to their experiences with religious persecution under British rule. They wanted to ensure that the government wouldn't be able to impose a religion onto it's people, and it was this clause that ensured the separation of church and state.

But the Establishment Clause poses some questions: "How do we draw the line between government neutrality and hostility toward religion?", "How much religious expression is too much with concern to the government?", and "When does government funding become support for religion?" Luckily, we have the Supreme Court to answer these questions for us.

What's said to be the most important case regarding the Establishment Clause is the case of Lemon v. Kurtzman (1971). To determine whether the government had crossed the constitutional line, the Court established a three-pronged test that examined the purpose, effect, and level of entanglement with religion. The court looked at:

1. The Secular Purpose - The action must have a primary secular (non-religious) purpose

2. The Primary Effect - The action’s principal or primary effect must neither advance nor inhibit religion

3. Whether there was Excessive Entanglement - The action must not foster excessive government entanglement with religion

   
   

In the case at hand, Pennsylvania and Rhode Island laws had provided funding to religious private schools for the salaries of teachers and other educational materials for the school. In an opinion, authored by Justice Warren Burger, the court had determined that the laws had not violated the first two prongs. The court asserted that the secular purpose was to educate children and the primary effect didn't outright inhibit or advance religion (though Justice William O. Douglas and 3 other dissenters disagreed with this point). The court did however rule that the law would result in excessive entanglement with church and state, as the state would have to monitor the school to ensure the funds would be used in a non-religious manner. Although this standard is said to be good law, it's mostly the court paying lip service to the case in order to appear as adhering to precedent. In many cases, we can see that the court hasn't truly stayed within the boundaries this standard has set.

The case of Zelman v. Simmons-Harris (2002) resulted due to Ohio's Pilot Project Scholarship Program giving scholarships to students for any school of their choosing, even those with religious affiliation. In an opinion (5-4) authored by William H. Rehnquist, the Court decided that scholarships given to students could be used for schools that had religious ties, saying that the program "permits individuals to exercise genuine choice among options public and private, secular and religious."

In the case of Town of Greece v. Galloway (2014), the town of Greece in upstate New York, had a five-member board that held monthly meetings which were open to the public and held to conduct legislative business. Though, the town had begun each meeting with a prayer that in practice only had Christian clergy members delivering the prayer. In an opinion (5-4) authored by Justice Kennedy, the court ruled that the purpose of the prayer doesn't necessarily have to not have a religious purpose, because that would force judges to settle cases of whether or not speech is religious and that in itself would be excessive entanglement between the government and religion. The court uses the ruling in Lemon, but slightly altering what is understood as the definition of government, as they change the definition from referring to the legislative and executive branch to all branches of the government. The court neglects that it is their prerogative to determine the religious speech in these cases, because if they don't, then the alleged religious freedoms of many people will be neglected, such as they were in the case at hand.

In the case of Kennedy v. Bremerton School District (2022), we can see how the court goes from valuing precedent to valuing history and tradition.

Short clip from Fiddler on the Roof (1971)

In the case, before and after games Kennedy, a high school football coach, would begin prayer by himself on a football field, to where students and other members of the team would join him in his prayer. Kennedy had been given time to himself for any private matters he chose to attend to. The school district placed Kennedy on paid leave to protect themselves from lawsuits, and Kennedy responded with a lawsuit against the district. In an opinion (6-3) authored by Justice Gorsuch, the court determined that the district had violated Kennedy's first amendment rights. The court ruled on the basis that Kennedy had partaken in his prayers privately, and that he had a right to practice his religion. This case deals with elements of the Free Exercise clause, but it is also important when discussing the establishment of religion by the government. Kennedy is a public school coach, and is therefore employed by the state government. The court argued that because Kennedy prayed voluntarily, he was not coercing students. Although, Justice Sotomayor in dissent argued that because Kennedy chose to pray in the middle of the field, his prayers were not as private as the court suggests. Ultimately, the court relied on the history of the Establishment Clause to reach their ruling, rather than relying on the Lemon test. The Court focused on whether or not a high school coach's prayer fit within our nation's historical traditions of religious expression. The shift is emblematic of the court moving away from structured tests, and relying on history and tradition to determine the legality of first amendment discrepancies within the law.

The shift from precedent to tradition cements a turning point in the Court’s previous approach to the Establishment Clause. Through prioritizing historical interpretations over structured legal tests, the Court reshapes the way it evaluates the separation of church and state. The change signals that the way we will interpret the First Amendment will change, and likely not lead us to the same conclusions we've reached in the past.