The First Amendment Under A Microscope — Part 1 Of 3 — The “Establishment” Clause

One of the potential casualties of the Trump Administration is the First Amendment, in particular, the "establishment" clause.   So, even though I have discussed the First Amendment many times in past columns, I have done so on a rather piecemeal, ad hoc manner. But now I think that, given the challenges of living in Trump's America, a more systematic, deliberate, and comprehensive approach might be in order. So let's put the First Amendment under an interpretive microscope and examine it in more detail.

Congress shall make no law respecting an establishment of religion ... 

This is called the "establishment" clause (or occasionally the "dis-establishment clause"). The original meaning of the "establishment" clause, when James Madison first condensed it from several other, similar clauses suggested by the States that ratified the Constitution, was that the power to designate churches and religions as "official" and specially favored, was to allow the several States to have this power, but to prohibit the government at the Federal level -- "Congress" refers to the Federal Legislature -- from favoring one sect, denomination, church, or body of religious doctrine over any other. Some States in the early Republic actually exercised this power.  The Connecticut legislature designated the Congregational church as "official" from 1801 until 1818, and in Massachusetts by the Massachusetts legislature until 1833. But there are a couple of qualifications, one minor and one major, that need to be taken into account:

o The "establishment" clause refers to "law", by which it means a decree or regulation or other instrument possessing coercive legal force and entailing penalties for its violation. So, even though it has never happened, I suppose it would be possible for the Congress as a whole, or either House thereof, to pass a non-binding resolution in praise or censure of the actions, or even the doctrines, of some church, sect, denomination, or religious organization. The "optics" would be atrocious. And even a non-binding resolution would be squarely contrary to the spirit of the "establishment" clause. But there would be no contestable violation of the First Amendment.

o Of more importance is the effect on the interpretation of the First Amendment resulting from viewing the "establishment" clause through the exegetical lens of the "equal protection" clause of the 14th.  (Remarks similar to the following will also apply to the other clauses of the First Amendment:  the "free exercise" and "abridgement" clauses). In 1925, the Supreme Court issued an opinion in Gitlow v. New York in which the Court said --  this is obviously a condensed version -- that vis a vis freedom of the press, the part of the First Amendment at issue in Gitlow, reading the First Amendment within the interpretive context of the 14th Amendment and "equal protection" implied that the States are not free to abridge freedom of the press in any manner and to any degree prohibited to the Federal government. Basically, the States could not do anything the Federal government could not do.

In technical jargon, we now say that Gitlow "incorporated" the First Amendment against the States" or, anyway, incorporated the "abridgement"-clause language about freedom of the press against the States. The States may be only as restrictive on freedom of the press as the Constitution permits the Federal government to be -- but no more so.  This was the beginning of an explicit "incorporation doctrine" which has been worked out over succeeding decades, most recently in 2008 and 2010 in DC v. Heller and McDonald v. City of Chicago, respectively, which jointly incorporated the 2nd Amendment against the States. (I say the "beginning of the incorporation doctrine", because the possibility of incorporating all the Bill of Rights -- actually only the first 8 Amendments, since the 9th and 10th Amendments already apply explicitly to the States -- against the States was discussed during debate on the 14th Amendment. Congress chose not to raise the issue in that debate, because the States of the former Confederacy would have strenuously objected, and their support was needed for passage of the 14th Amendment. See Kurt Lash's magisterial The Fourteenth Amendment and the Privileges and Immunities of American Citizenship.) The bottom line is that, as matters stand now vis a vis the interpretation of the First Amendment, both the States and the Federal government are prohibited from designating any church, denomination, religious organization, or body of religious doctrine as "official".

A much more subtle, but arguably even more important, implication is contained within the deceptively straightforward language "respecting an establishment". Note that the "establishment" clause does not say "Congress shall make no law designating any church as 'official' ... ", nor does it say "Congress shall make no law granting any religious organization or body of doctrine as favored ... ".  The language is even more inclusive and comprehensive. The locution "respecting an establishment" may be fairly read, and Federal courts have read it, to mean "Congress shall make no law pertaining in any way, however indirect, favoring any religious institution or ideology" etc.   In other words, what is at issue is any kind of partiality, any kind of non-neutrality, any kind of favoritism toward any religious institution or ideology. Furthermore, the use of an indefinite article is significant:  "an establishment of religion", not "the establishment of religion". The implication here is that, not only is any particular act or form of religious favoritism prohibited ("the establishment"), but any and all forms of any kind of religious favoritism are forbidden ("an establishment"). An analogy ...  If your family only has only one car, and you say "I'm going to drive the car to the store," there is no ambiguity:  your family knows which car you are going to drive. If your family has, say, four cars, and you say "I am going to drive a car," you mean "I am going to drive any one of the four". "A" and "an" are less restrictive than "the".  (If you take away your teenager's driving privileges, you prohibit him from driving any car, not just a particular car.) "An establishment" means "any form of establishment whatsoever". James Madison had no law degree but was a master of the English language.

Any of the three main clauses of the First Amendment -- "establishment," "free exercise," and "abridgement" -- could easily seduce one into becoming hopelessly lost in the alternate universe of constitutional interpretation.  The "establishment" clause is no different.  As with the Constitution generally, many hermeneutical issues turn on making fine, at times almost microscopic, distinctions among cases and laws.  But a couple of finer points should be mentioned, provided we stay well clear of interpretive event horizons where even professional constitutional scholars tremble to step. The following is just a miniscule sample of the uppermost crystal on top of the constitutional iceberg:

(1) Courts have held that the "establishment" clause does not forbid government from distributing any and all kinds of aid to religious people or religious schools.  In 1947, for example, the Supreme Court ruled in Everson v. Board of Education of the Township of Ewing that local governments may constitutionally provide bus fare to school children who attend parochial school, with the usual provisos ( e.g., equal amounts of money), and that doing so does not violate any "due process" language of the State or Federal constitutions. In 1971, the Supreme Court in Lemon v. Kurtzman even went so far as to allow the State of Pennsylvania to subsidize the cost of textbooks for religious schools, provided that the relevant government agency purchase only textbooks on secular, religion-neutral subjects -- specifically mathematics, modern foreign languages, "hard" science, and physical education. (Presumably, the Court reasoned that there is no such thing as, e.g., "Catholic trigonometry" or "Presbyterian chemistry ".) But even then, the Court required that government agencies involved in this activity not become enmeshed in "excessive entanglement" with matters religious, however peripheral and indirect such "entanglement" might be.

(2) Courts have also generally ruled that not providing churches with, e.g., police and fire protection, and allowing churches to circumvent local building codes as to fire safety, building occupancy, and sanitation also violate the "establishment" clause. Such issues are not religious issues per se, but issues of public safety and security, and thus not within the ambit of the "establishment" clause. If a church's building does not meet construction and fire codes, and if it catches fire and burns, killing those inside, it makes no substantive difference that it was a church that burned, and not a night club or a porn shop.  Churches are viewed as a part of the community, irrespective of their theological convictions, and so are bound by the same laws and regulations as long as those laws and regulations do not impinge upon the churches' theological  convictions or doctrinal principles.  Placing "Exit" signs at strategic points in the interior of a church building is not an enticement to submit to the Antichrist.

The case law in all "establishment"-clause-related matters is obviously far too voluminous to even cite by reference. But here is a representative sample for those who are  especially interested:

Zorach v. Clauson
Abingdon School District v. Schempp
Walz v. Tax Commission of the City of New York
Lemon v. Kurtzman
Mueller v. Allen
Marsh v. Chambers
Wallace v. Jaffee
Mitchell v. Helm

It would be possible to make "establishment"-clause scholarship the task of a professional lifetime as a constitutional lawyer. People have done so.

James R. Cowles


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