Religion I

The First Amendment contains two separate guarantees: known as the Establishment Clause and the Free Exercise clauses respectively. The two guarantees supplement and contradict each other depending upon the issues presented. The two clauses are found in the same phrase: "Congress shall make no law respecting an establishment of religion [free exercise clause], or prohibiting the free exercise thereof [Free Exercise clause]."

The First Amendment was adopted to curtail the power of Congress to interfere with the individual's freedom to believe, to worship, and to express himself in accordance with the dictates of his own conscience. The plain language of the amendment thus imposes no direct restraint on states. Theoretically, then, the first amendment itself would not bar a state from establishing its own "state" religion. Until the Fourteenth Amendment was added to the Constitution, the First Amendment's restraints on the exercise of federal power simply did not apply to the States. But when the Constitution was amended to prohibit any State from depriving any person of liberty without due process of law, that Amendment imposed the same substantive limitations on the States' power to legislate that the First Amendment had always imposed on the Congress' power.

Writing for a unanimous Court in Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), Justice Roberts explained:

• ". . . We hold that the statute, as construed and applied to the appellants, deprives them of their liberty without due process of law in contravention of the Fourteenth Amendment. The fundamental concept of liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment. The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws. The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion."

The Court more recently reaffirmed incorporation in WALLACE v. JAFFREE, 472 U.S. 38 (1985).

The establishment clause represents, in part, a reaction to religious persecution resulting from establishment of official state religions in Europe. But, as we shall see, the Court has interpreted the clause to prevent not only the establishment of a state religion, but to create a wall of separation between church and state. The Establishment Clause requires government to maintain neutrality in religious disputes. Over the years, the Court has developed a three part test to evaluate establishment claims. But the court has had a great deal of difficulty agreeing on its precise application. As the Court stated in a 1973 case (later over-ruled)

• "...Establishment Clause cases are not easy; they stir deep feelings; and we are divided among ourselves, perhaps reflecting the different views on this subject of the people of this country. What is certain is that our decisions have tended to avoid categorical imperatives and absolutist approaches at either end of the range of possible outcomes. This course sacrifices clarity and predictability for flexibility, but this promises to be the case until the continuing interaction between the courts and the States - the former charged with interpreting and upholding the Constitution and the latter seeking to provide education for their youth - produces a single, more encompassing construction of the Establishment Clause."

Here is the three part test, established in Lemon v. Kurtzman.

1) Secular purpose: Does the legislation have a secular (non-religious) purpose. In applying the purpose test, the court has said, "it is appropriate to ask "whether government's actual purpose is to endorse or disapprove of religion." Whenever the State itself speaks on a religious subject, one of the questions that we must ask is "whether the government intends to convey a message of endorsement or disapproval of religion."

2) Effect Test. Does the legislation have the primary effect of advancing religion? The court has stated in this regard, "It is well settled that the Establishment Clause is not violated every time money previously in the possession of a State is conveyed to a religious institution. For example, a State may issue a paycheck to one of its employees, who may then donate all or part of that paycheck to a religious institution, all without constitutional barrier; and the State may do so even knowing that the employee so intends to dispose of his salary. It is equally well settled, on the other hand, that the State may not grant aid to a religious school, whether cash or in kind, where the effect of the aid is "that of a direct subsidy to the religious school" from the State." The effect test is difficult to administer, and the Court has often been closely divided.

Entanglement Test Does the law or practice create an excessive entanglement of church and state.

As with many constitutional principles, the best way to understand is to review their application in specific instances. We will do that in the following panel.