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What does it mean to “make no law respecting an establishment of religion”? Should the establishment clause do nothing more than prevent Congress from interfering with the ability of states to establish religions? Or was it intended, as Thomas Jefferson famously put it in 1802, to establish “a wall of separation between church and state”? Even the framers disagreed about how to answer such questions.

The incorporation of the establishment clause in 1947 revived the debate. States were now prohibited from passing laws respecting an establishment of religion, but it remained unclear exactly what establishment means. At one extreme, so-called separationists argue that the establishment clause erects a high, impenetrable wall of separation between church and state that prohibits any governmental support of or financial aid to religion. At the other extreme, so-called accommodationists argue that the establishment clause only prevents the government from giving preferential treatment to one religion over another. Government aid or support to religion is acceptable as long as it is nondiscriminatory. In between are a variety of middle-ground approaches.

establishment clause The First Amendment provision that prevents government from imposing religion on citizens and is used to justify the separation of church and state.

free exercise clause The First Amendment provision that protects the right of citizens to practice their religion without governmental interference.

The battle between these two positions has played out in high-profile cases. In Engel v. Vitale (1962), the Supreme Court ruled on a case involving a prayer written by the New York State Board of Regents to be recited aloud each morning by students in New York’s public schools: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country.”⁷⁸ The majority of the Court embraced a separationist view and held that any state-sponsored prayer in public schools violated the establishment clause, even if the prayer was nondenominational and participation in its recitation was voluntary.

State-sponsored prayer in public schools was ruled unconstitutional in 1962 by the Supreme Court. Some schools replaced it with a moment of silence during which students were encouraged to pray if they wanted to. Does this satisfy the Court’s ruling?

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The decision left students free to pray privately in school, and many religious organizations such as the American Baptist Convention, the American Jewish Congress, the American Lutheran Church, the Episcopal Church, the National Council of Churches of Christ, and the United Presbyterian Church initially supported the ruling on the grounds that religious training should be left to families and churches. Others, such as Senator Barry Goldwater (R-AZ), declared that the Court had “ruled against God.”⁷⁹ Later, President Ronald Reagan expressed his opposition to the ruling in the 1980s, and his attorney general, Edwin Meese III, went even further. In a July 1985 speech to the American Bar Association, Meese criticized the Supreme Court for ignoring the original intent of the establishment clause and called incorporation a “politically violent and constitutionally suspect” blow to federalism.⁸⁰ Over the years, several attempts to overturn Engel v. Vitale by constitutional amendment have failed.

Most countries around the world have also rejected the type of state-sponsored prayer at issue in Engel v. Vitale. A study by the American Civil Liberties Union concluded that only 11 out of 72 countries surveyed endorsed state-sponsored prayer. The countries that do so range from Saudi Arabia and Libya to Germany and Great Britain, and in the latter two countries, participation by students must be voluntary.⁸¹

Many establishment clause cases in the United States have involved disputes over some form of government funding. Everson v. Board of Education (1947), the case that incorporated the establishment clause, is an example.⁸² Under New Jersey law, parents of schoolchildren were reimbursed for the cost of transportation to and from school, including parents of children who attended private religious schools. By a 5–4 vote, the Supreme Court ruled that such a reimbursement by the government did not violate the establishment clause.

In Everson, the money went to parents. What if government funds go directly to the religious schools? For instance, Pennsylvania had a program that reimbursed church-affiliated elementary and secondary schools for the cost of teacher salaries related to instruction in nonreligious subjects such as math and English. When the Supreme Court considered that program in Lemon v. Kurtzman (1971), it created a test to help determine when a law or program violates the establishment clause.⁸³ According to the three-part Lemon test, government laws and programs do not violate the establishment clause if the following conditions are satisfied:

1 They have a secular (nonreligious) purpose [the intent prong].

2 Their primary effect is neither to advance nor inhibit religion [the effect prong].

3 They do not lead to excessive government entanglement with religion [the entanglement prong].

The Pennsylvania program failed the Lemon test because it did not satisfy the last prong. Only “excessive and enduring entanglement” could guarantee that teachers were not interjecting religious beliefs into secular classes. The Supreme Court subsequently used the Lemon test to strike down an Alabama law that provided for a one-minute moment of silence in all public schools “for meditation or voluntary prayer.”⁸⁴ The Court said that the law failed the first prong of the Lemon test: Its clear intent was to promote religion. The ruling implied that some moment of silence laws, if properly written and implemented, might pass the Lemon test. Likewise, the Supreme Court struck down a Louisiana law that required the teaching of “creation science” (a literal interpretation of the Biblical account of creation) alongside the teaching of evolution. The Court again said that the law violated the first prong of the Lemon test: The intent of the legislature was to promote religion.⁸⁵

Compare those with a case that came before the Supreme Court in 2019 concerning a 40-foot-tall World War I memorial shaped like a Christian cross that stands on public land in Bladensburg, Maryland. The District Court concluded that the memorial had a secular purpose (to remember fallen soldiers), thereby passing the intent prong of the Lemon test, and that it also passed the effect and entanglement prongs. The Court of Appeals disagreed, however, saying that the memorial failed both the effect and entanglement prongs. A fractured 7–2 ruling by the Supreme Court ultimately held that the cross did not violate the establishment clause.⁸⁶

The issue of separation of church and state is not unique to the United States. Article I of the French Constitution says that France shall be a “secular” republic, and since 1905, France has had a law requiring the separation of church and state.⁸⁷ In 2004, France passed a controversial law that banned the wearing of conspicuous religious symbols such as Muslim headscarves, Sikh turbans, Jewish skullcaps, and Christian crucifixes in government-operated primary and secondary schools.⁸⁸ Although the law was couched in the language of separation of church and state, many denounced it as a violation of religious freedom.

In the United States, the establishment clause and the free exercise clause are similarly apt to be at odds. The Supreme Court decided the Everson case the way it did partly because if the government had denied reimbursement of transportation costs to parents of children who went to religious schools while reimbursing parents of children who went to secular schools, the former group could feel that it was being penalized for its religious beliefs: a violation of the free exercise clause. Such tension between the establishment and free exercise clauses is not unusual. Whatever the tension, a majority of Americans seem to support the idea of a clear separation between church and state (see Figure 4.2).

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Figure 4.2 Separation of Church and State

How did those surveyed in this poll respond when asked whether they agreed that “The First Amendment requires a clear separation between church and state”? What do you think “a clear separation between church and state” means? Is the answer obvious?

Source: First Amendment Center, State of the First Amendment Survey, 2010.