States Could Have Established Religion At Time Of Founding

6 thoughts on “States Could Have Established Religion At Time Of Founding”

1. This subject is indeed complex and fraught with many sticky issues.

   The First Amendment of the Constitution contains two clauses related to religious freedom: the Establishment Clause and the Free Exercise Clause. The Establishment Clause prevents the government from making a law related to “an establishment of religion,” which means that it cannot endorse a certain religion or become entangled in religious activities. This essentially describes the separation of church and state that is fundamental to American democracy. Meanwhile, the Free Exercise Clause prevents the government from prohibiting the free exercise of individual religious beliefs. It also provides some protection for religious practices.

   These clauses often overlap, but they also may conflict. For example, a government entity may violate the Free Exercise Clause if it does not provide some basic services to religious institutions. On the other hand, a government entity may violate the Establishment Clause if it provides too many services to religious institutions. The government thus is tasked with striking a balance between the prohibitions in these clauses, which is not always straightforward.

   For First Amendment purposes, religious beliefs do not need to fall within the structure of an organized religion, nor do they need to involve a belief in a supreme being. Beliefs will be considered religious if they are sincerely held and if they function as a religion for that person.

   The Supreme Court generally has endorsed an interpretation of the Establishment Clause that requires the government to refrain from favoring religion over secularism, and from favoring any religion over any other religion. The Court traditionally applied a test known as the Lemon test (from its decision in Lemon v. Kurtzman) when deciding whether a government action violates the Establishment Clause. This test consists of three components:

   Does the law have a secular purpose? Posting the Ten Commandments on government property violates the Establishment Clause, but paying for textbooks for secular courses in religious schools does not.
   Does the law have a primary effect that does not advance or inhibit religion? The government cannot give a person an automatic day off from work on any day that the person recognizes as their “Sabbath.”
   Did the government avoid excessive entanglement with religion? The government cannot pay salaries to teachers in religious schools, even if they teach secular courses, since the line between religious and secular activity here is too blurry to assure the separation of church and state.
   If a law passed each of these three hurdles, the Court would find that it did not violate the Establishment Clause. However, not every Establishment Clause decision adhered strictly to the Lemon test, and the Court recently indicated that it has abandoned this test for a more fluid approach. Cases often rely heavily on their specific facts. For example, the government can provide buses to take children to religious schools, but they cannot provide buses to take children in religious schools on field trips.

   Public schools cannot hold daily prayers under the Establishment Clause, nor can they hold regular Bible readings, prayers at school events (even if student-initiated), or moments of silence for meditation. On the other hand, schools must allow student groups or non-school entities that use school property to pursue religious activities on the property. This is based on another First Amendment right, freedom of speech, under which prayer is considered protected expression.

   The Free Exercise Clause prevents the government from targeting certain religious groups or prohibiting certain religious practices. However, the government can prohibit certain conduct in general without creating an exception for people who engage in that conduct for religious reasons. These laws initially needed to pass strict scrutiny. This standard of review requires the government to identify a compelling government interest and prove that the law is necessary to serve that interest. The law must be narrowly tailored and use the least restrictive means to further the government interest.

   Most laws do not survive strict scrutiny, and the Supreme Court lightened the burden on the government in Employment Division v. Smith in 1990. In this case, the Court ruled that a law does not violate the Free Exercise Clause if it is generally applicable and was not designed to interfere with religion, regardless of its actual effect on religious practices. Congress responded with the Religious Freedom Restoration Act (RFRA), which provided that the government cannot substantially burden the free exercise of religion, even when enacting a rule of general applicability. (RFRA essentially reinstated strict scrutiny for these laws.) The Supreme Court struck down RFRA as applied to the states, but it remains in effect as applied to the federal government. Over 20 states have enacted their own versions of RFRA as well.

   1. Thanks, Fred, for that explanation.

      Yes, the Supreme Court has messed up 1st Amendment interpretation. Any application of the Amendment to the states or localities is mistaken. Now, I believe Congress passed one or more laws during the 20th century that codify those interpretations. But again, that is yet another instance of the Constitution being violated.

2. In Massachusetts from 1776 till at least 1791, each town was required to have a Congregational Church. Citizens who did not attend at least once each quarter were fined 10 shillings.

   (It was also illegal to stage theatrical entertainment. Branding, ear cropping & public whipping were punishments for crimes. Much less expensive and probably more effective than what we do today.)

   1. In fact, J. Sobran, many of the individual states had an established religion– i.e., a favored Christian denomination– long after the enactment of the Constitution in 1789. The premise that the US Constitution forbids the states from doing this is simply mistaken.

3. Virginia debated considerably before disestablishing the Anglican church in 1786, 3 years after the end of the Revolution. And vestiges of government favoritism towards that church actually remained until 1840.

   No one thought the 1st Amendment applied to the individual States; it was a restriction on the Federal govt. Of course, Lincoln’s War changed that.

   1. I agree, J. Sobran. “Congress shall make no law…”

      The text of the First Amendment is crystal clear.

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