The Establishment Clause and the Free Exercise Clause

The two "religion clauses" of the First Amendment appear at the beginning of the Amendment. "Congress shall make no law respecting an establishment of religion" (the Establishment Clause) "or prohibiting the free exercise thereof" (the Free Exercise Clause). As constitutional scholar George Goldberg stated, "It was equally agreed that, just as the federal government should be prohibited from telling people how to worship, it should be prohibited from telling them how not to worship."

The framers had a clear understanding of the phrase "establishment of religion," given their experiences with the "established" Church of England and the established religions of the various states. The Establishment Clause was to serve two functions. It would forbid the federal government from setting up a national church, and it would prohibit the federal government from interfering with the church/state relations of the individual states." That's why the framers worded the clauses so carefully. As Evans observed, "The agency prohibited from acting is the national legislature; what it is prevented from doing is passing any law 'respecting' an establishment of religion. In other words, Congress was forbidden to legislate at all concerning church establishments-either for or against. It was prevented from setting up a national established church; equally to the point, it was prevented from interfering with the established churches in the states."

Supreme Court Justice Joseph Story, in his Commentary on the Constitution of the United States (1779-1845), affirmed this point and also explained that it was proper for government to encourage the Christian religion. "Thus, the whole power over the subject of religion was left exclusively to State governments, to be acted on according to their own sense of justice and the State Constitutions." Story also wrote, "Probably, at the time of the adoption of the Constitution, and of the ... [First Amendment], the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the State, so far as such encouragement was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation."

Though increasing religious diversity eventually led to disestablishment in the states, "in 1775, no fewer than nine colonies had such arrangements." From the time of the Constitutional Convention to when the Bill of Rights was adopted, "six of the original thirteen statesConnecticut, Georgia, Maryland, Massachusetts, New Hampshire and South Carolina-had officially supported churches." Other states made Christian belief a prerequisite to holding office. Moreover, it was clear that these six states were unwilling to enter the Union unless the federal Constitution contained a provision prohibiting the federal government from interfering with their established churches.

While the Establishment Clause seems to get most of the attention today, often ignored is the equally important Free Exercise Clause. Theoretically, there should be no tension between the two religion clauses because they were both designed, essentially, to promote religious freedom by prohibiting federal interference in the matter. Indeed, originally, according to George Goldberg, there was no tension between the clauses. But today the clauses are often in conflict in court cases, as we have seen. In bending over backwards to prevent the "establishment of religion," the courts often suppress individuals' free exercise rights. Such a result would rarely occur if the Supreme Court had not, through unbridled judicial activism, stretched the scope of the Establishment Clause far beyond its intended and clearly stated parameters.

That the Establishment Clause was never intended to permit federal interference with the religious decisions of the several states is manifest in the words of Chief Justice John Marshall, considered by some to be the greatest jurist in American history. "Had the people of the several states, or any of them, required changes in their constitutions, had they required additional safeguards to liberty from the apprehended encroachments of their particular governments, the remedy was in their own hands, and would have been applied by themselves," wrote Marshall. In other words, the Establishment Clause operated to forbid the federal government from establishing a national religion or prohibiting the free exercise of religion; it did not so forbid the states. But in 1940 in Cantwell v. Connecticut, the Supreme Court held that these prohibitions apply to the state governments as well, through a legal fiction called "incorporation." In a massive, unconstitutional shift of power, the federal Establishment Clause and Free Exercise Clause were made applicable to the states through incorporation into the Due Process Clause of the Fourteenth Amendment. This meant that the federal government could now prevent the states from "establishing" religion or interfering with its free exercise. Through time, with the declining Christian consensus in America and the advance of secularism,' the scope of the Establishment Clause was extended further.

Today, as we've shown, the federal courts prevent all kinds of religious activities that are only remotely connected with state action or supported with state funds. That is how the First Amendment Establishment Clause, which was originally intended to apply solely to the federal government, prevents not just the state, but also state-funded institutions, such as our schools, from involvement in religion. But it is not just the state's affirmative endorsement of religion that the courts forbid, but sometimes the mere presence of religion in the public arena. Through convoluted reasoning, federal courts, for example, have, as we've observed, forbidden voluntary prayer in public schools and student-sponsored prayer at athletic events-even though the state isn't endorsing a particular religion or requiring students to participate. The long arm of the federal government, in its zeal to prevent an establishment of religion, now often interferes with the free exercise rights of individuals. Thus the Establishment and Free Exercise Clauses are often in full conflict. In the name of preventing the establishment of religion (erroneously referred to as upholding the separation of church and state), which was intended to promote, not restrict religious freedom, the courts suppress the free exercise rights of individuals, students and adults alike. This is precisely the kind of authoritarian tyranny the founders sought to avoid.

In addition to applying the Establishment Clause to the states, the courts have also extended its scope to absurd proportions. The federal government was never intended to be hostile to religion. While it was "forbidden to interfere with the people's religious life," "it was not required to abandon its own. The Continental Congress frequently engaged in religious observance, from days of fasting and prayer to appeals for divine assistance. One of its first acts in 1774 was to appoint a chaplain. In 1780, because English Bibles were in short supply, Congress passed a resolution encouraging states to print an American Bible. As noted earlier, Congress passed the Northwest Ordinance to promote religion and morality, and it funded a project to provide Indians with a Christian education.

Congress continued to promote Christian religious interests after the Constitution was ratified through appointment of official chaplains, recitation of prayers, recognition of days of thanksgiving, and continued appropriations for the Christian education of Indians. So, before, during, and after the adoption of the First Amendment, Congress had its hands all over religion. Which, as Stan Evans stated, presents a radically different picture from the revisionist version that this country was founded by secularists and Deists intent on creating a "wall of separation" between church and state.

Indeed, Justice Story made clear that the religion clauses of the First Amendment were not designed to force the state into impartiality between the Christian religion and other religions. Story wrote:

The real object of the [First Amendment] was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government.

There is no doubt about the answer to our question at the beginning of this chapter. American freedom is not an accident, nor is it a child of the Enlightenment. The historical record is clear; America's unique experience in freedom is a direct outgrowth of the Christian religion. If Christian faith is thus foundational to our liberties, how can we sustain our freedom if our Christian consensus is declining? How will this constitutional republic withstand the assault of rampant cultural relativism? In the next and final chapter, some of America's leading Christian figures answer these questions and more.

chapter Twelve

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Responses

  • Chiaffredo
    Does the establishment clause or the free exercise clause give citizens greater religious freedom?
    1 year ago
  • magnus
    Which is a result of the Free Exercise Clause?
    10 months ago
  • marissa findlay
    How can the free exercise clause and establishment clause conflict?
    9 months ago
  • selamawit habte
    How is the free exercise of religion and the establishment clause dfferent?
    2 months ago
  • nora
    How are the establishment and free exercise clauses in conflict?
    2 months ago
  • julia
    How do free exercise clause and establishment clause work together?
    2 months ago
  • ernesta
    What are the establishmeant and exercise clauses?
    2 months ago
  • kinfe
    How does the free exercise clause limit the power of the national government?
    1 month ago
  • Chiaffredo
    Is there tension between establishment clause and free exercise clause?
    24 days ago
  • James
    How the establishment clause and free excercise clause cooperate?
    20 days ago

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