American Democracy in Context. Joseph A. Pika
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of the House of Representatives voted against the bill. One was Ron Paul, a Republican from Texas who sought the Republican presidential nomination in 2008 and 2012. Another was Barney Frank, an openly gay Democrat from Massachusetts. Both questioned the constitutionality of the law and argued that it violated civil liberties. The Supreme Court has not directly ruled on the constitutionality of the law, but in 2011, it did reject a lawsuit brought against the Westboro Baptist Church by the family of a soldier whose funeral was picketed. The picketers stayed outside a 1,000-foot buffer zone from the church, and the Court upheld the picketing on free speech grounds.77 In European countries that have laws regulating hate speech, regulating such demonstrations would be much easier; the free exercise rights (see below) of the Westboro Church would not be as much of an issue as it is in the U.S. Although Article 9 of the European Convention on Human Rights says that “Everyone has the right to freedom of thought, conscience, and religion,” the Article goes on to say that the freedom of religion can be limited in the interests of “public safety … the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
The First Amendment Guarantee of Freedom of Religion
Much controversy has been generated by the two religion clauses in the First Amendment: the establishment clause and the free exercise clause. Incorporation has added fuel to the fire because it allowed the Supreme Court to use the First Amendment to strike down such customs as prayer in the public schools (which, if not for incorporation, would be a matter for individual states and localities to decide).
The Establishment Clause
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