By Janette Ansolabehere
Ever since the Declaration of Independence and its accompanying addendum, the Bill of Rights was first read, the principle was enshrined that Americans could worship free of Government interference. In other words, the government could not establish a particular religion as was the case in some European countries such as Great Britain where Anglicanism was the state religion. Many of the early immigrants came because they wished to worship in a different faith and were fleeing persecution. Immigrant groups like the Pilgrims, the Puritans, the Walloons, and the Quakers left their home countries to find freedom to worship as they wished. This is the basis of the Establishment Clause.
In the 1947 case, Emerson v. Board of Education, the Court made it clear that the Establishment Clause requires strict separation of church and state, thus specifically prohibiting the use of public funds to pay for religious instruction. But since Emerson the Court has been chipping away at the Establishment Clause.
The Establishment Clause simply provides that government cannot enact a law “respecting the establishment of religion.” It provides no further explanation or guidance. In lieu of guidance in the Constitution, it has been left to the Court to interpret the Clause and provide guidance. Over the years, the Court has offered differing explanations. These fell into two rationales. Everson was based on the first: to prevent the government from coercing people into specific religious beliefs. This includes prohibiting the use of public funds to “support” religion although government may provide services to churches (police, fire, etc.) as long as the services are provided on the same terms provided to other institutions and persons.
In 1962, the Court set out a separate theory for the Establishment Clause in Engel v. Vitale. The Court struck down a school district’s policy of requiring teachers to begin every school day by reciting a prayer established by the school board. The Court found that if government put “an official seal of approval on particular religious practices, then US politics will inevitably be consumed by religious believers from competing faiths, all lobbying elected officials to make sure that their religion receives the government’s blessing.” [1]
In Allegheny County v. ACLU (1989) the Court further stated that government cannot convey or attempt to convey a particular religious viewpoint, or that a particular religion or religious belief is “favored or preferred.” In Lee v. Weisman (1992) the Court held that the government may not use even subtle forms of coercion, including societal pressure to force a nonbeliever to participate in religion. Lee involved a public school that invited a rabbi to deliver a prayer at a school graduation ceremony.
Up to the Roberts Court, the Court had recognized the following values. First, the right to be free from coerced religious activities. Second, the right to live in a country where the government does not favor one religious faith over another religious faith. All that changed with Kennedy v. Bremerton School District (2022).
Kennedy concerned a high school football coach who would publicly pray at the 50-yard line following each game in view of players, students, and spectators. He was often surrounded by many of these during this prayer. In a 6-3 option, written by Justice Gorsuch, he wrote that, “the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’” Gorsuch described the coach’s prayer as “a short, private, personal prayer” which seems ingenuous at best given the photographic evidence of crowds of players, students, and spectators surrounding coach Kennedy. Despite evidence that his prayer was public, not private, the Court’s six majority justices ignored the obvious conclusion that as head coach, his actions would have placed pressure on the players to join him.
What about the issue of government funding? That changed with Zelman v. Simmons-Harris (2002). In that case the Court loosened Everson’s strict rule against government funding of religion. In Zelman the Court held that states could offer tuition vouchers to schools that provide religious education. Then came Carson v. Makin (2022). In that case, the majority held that private school tuition vouchers provided to rural students must permit rural students to use the vouchers at religious schools. Note that Carson does not specifically indicate that its holding also applies to charter schools (public schools that are often managed by a private institution).
We may find out just how far the Court is willing to go in weakening the Establishment Cause. In June an Oklahoma School Board voted to allow two Roman Catholic Dioceses to operate a charter school. One of the dioceses has a policy to expel any student who, ‘“intentionally or knowingly’ express ‘disagreement with Catholic faith or morals.’” The ACLU has filed lawsuit in state court alleging the school board’s action violates the Oklahoma Constitution which provides that public education funds cannot be “used for any other purpose than the support and maintenance if common schools for the equal benefit of all the people of the State.” Interestingly, the ACLU’s claim specifically relies solely on the Oklahoma Constitution. The Complaint makes no reference to the First Amendment Establishment Clause. Apparently, given the Supreme Court’s recent decisions interpreting the Establishment Clause, the ACLU’s lawyers didn’t think basing its claim on the Establishment Clause would be successful given the Supreme Court’s decision in Carson v. Makin.
So where does the Establishment Clause stand now? Based on the current trend of the Court’s conservative six judge majority, protections for freedom of religious expression without government interference may be further weakened by the Supreme Court.
[1] The Supreme Court is Taking a Wrecking Ball to the Wall Between Church and State, Ian Millhiser, Vox August 13, 2023. Note that all quotes are from this the excellent Vox article.
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