A Mirror of Deceit: How Today's Interpretation of the Establishment Clause Has Deviated From Our Founding

"I can not speak particularly of any of the cases excepting that of Virginia, where it is impossible to deny that Religion prevails with more zeal, and a more exemplary priesthood, than it ever did when established and patronized by Public authority. We are teaching the World the great truth, that Governments do better without Kings & Nobles than with them. The merit will be doubled by the other lesson, that Religion flourishes in greater purity, without than with the aid of Government."

-James Madison to Edward Livingston, 1822

The misnomer that the Establishment Clause of the American Constitution allows the American Congress and U.S. Supreme Court the right to infringe on state religious establishment or non-establishment is contrary to the Constitution and the original framers to that document. The original framers, both Federalists and Anti-Federalists alike, adhered to a common understanding that religion was not the enemy of the republic, but rather, the sheer will and force to sustain it. Furthermore, they believed in the states' right to uphold religion or not uphold religion. For the Congress or U.S. Supreme Court to infringe on that state right, goes against the Establishment Clause.  To the founders, religion was the energy by which the conscience could determine good from bad; right from wrong. Religion and interfaith cooperation was integral to healthy citizenship and a calming of the disparate nature of religious and ethnic plurality in America, at a time when religious wars and discrimination were rampant throughout the world.

The United States took the lead with men like James Madison, Patrick Henry, Thomas Jefferson, and others to incorporate protections for religious practice and government non-preferential treatment of one religion over another. But unlike most sources found on the internet today which confound and confuse the reader into thinking that the Establishment clause was designed to encourage government sanction of religion and to keep religion from 'tainting' the public sphere, it was designed for the exact opposite. The Establishment Clause was instead, created and designed to keep government out of religion so as to maintain the purity of religion and the liberty of conscience.

Why does this matter?

Imagine living in a society where the government forces you to attend church. You must pay taxes to the church. You must kiss the hands of your priests and bow to your bishops. You must show yourself each week in the front pew to ensure you get favorable treatment by your government. Does that make you a 'good' person? Does that ensure a true and free conscience? 

The answer is 'no'. This is because the conscience is not driven by fearful forces telling us how to act and behave. It does not develop through dictation of societal norms and compulsion--that would be communistic and ritual-based rather than free and independent and it will kill the conscience. Rather the conscience can only develop when it has free will inside of an individual. When you do something bad, your conscience tells you and when you do good, it does the same. But a conscience cannot develop irrespective of some kind of moral sphere of influence. Whether it be called Christianity or something entirely different, religion grants the rules and boundaries that liberate the conscience. Religion guides the conscience. The founding fathers understood this.

It was this belief that led men like Roger Williams to write The Bloody Tenet in 1644. Within the document, Williams explains the necessity for the separation of church and state. Williams, having come out of the Puritanical religion, saw the deviance inherent in Massachusetts Bay politics. He did not agree with forcing people to attend church services and favoring church members over non-members. Williams rather, believed in a liberation of the conscience that would create the true Christianity-- a Christianity void of fear and persecution against one's fellow man. He was against 'uniformity' of religion and enforcing it by civil authorities as described in his 8th, 9th, 10th, and 11th points in his Tenet. (Williams) In this way, 'freeing' religion from civil constraints would allow the true Christianity to emerge--leading Jew and Gentile to Jesus not through forced conversion, but rather, through liberation of conscience.

In recent Supreme Court decisions, the Establishment Clause has been interpreted to mean that religion must not be preferred over non-religion. In other words, the government must uphold non-preferential treatment of religion and ensure religion is not granted preference over the public or 'civil' sphere. The outcome would be detrimental to our pluralistic democracy. This is anathema to what the founding fathers intended with regard to religion and the public sphere. James Madison's 1785 "Memorial and Remonstrance Against Religious Assessments" which was written in response to Patrick Henry's proposed religious assessment bill (which would have made mandatory in Virginia paying taxes to one's preferred church), states, 

"Because the establishment proposed by the Bill [referring to Patrick Henry's assessment bill] is not requisite for the support of the Christian Religion. To say that it is, is a contradiction to the Christian Religion itself, for every page of it disavows a dependence on the powers of this world: it is a contradiction to fact; for it is known that this Religion both existed and flourished, not only without the support of human laws, but in spite of every opposition from them, and not only during the period of miraculous aid, but long after it had been left to its own evidence and the ordinary care of Providence. Nay, it is a contradiction in terms; for a Religion not invented by human policy, must have pre-existed and been supported, before it was established by human policy. It is moreover to weaken in those who profess this Religion a pious confidence in its innate excellence and the patronage of its Author; and to foster in those who still reject it, a suspicion that its friends are too conscious of its fallacies to trust it to its own merits." (Madison)

 As a result, Madison voted against Henry's bill, not on the argument that religion must be suppressed and annihilated from public life nor to protect the citizens from religion--but the exact opposite--that to forcefully tax citizens in favor of a church would in essence water down religion and weaken it. He further argues that government has no business in religion in his "Memorial",

"Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance." (Madison)

The founding fathers understood the Establishment Clause disallowed government preferential treatment of one religion over another but also that government interference in religion was tyrannical. Government really had and has no business in the sphere of religion. 

So where does this leave us as a society when it comes to the Establishment Clause today?

Supreme Court cases like Engel v. Vitale (1962) has banned prayer in public schools by incorporating the Establishment Clause into the Fourteenth Amendment. Supreme Court justices decided in favor of Engel by a 6-1 decision arguing that prayer in public schools violates the separation of church and state. But according to the Establishment Clause, the government should not interfere in matters pertaining to religion nor favor non-religion over religion and vice-versa. In this decision the court took the preference of non-religion thus ushering in subsequent decades of court cases silencing religion in the public sphere. 

The case of Allegheny County v. ACLU of Greater Pittsburgh (1989), is a case illustrating how the Supreme Court decision ruled in favor of dismantling a Christian nativity scene inside the Allegheny County Courthouse because it 'infringed on the Establishment Clause'. This decision however, was not for the Supreme Court to decide, but the state of Pennsylvania legislature to decide. This not only goes against the Constitution, it places religion in the sphere of the Federal Government and Supreme Court over the rights of the states (who according to originalist constitutional principle are the only power to determine issues relating to established religion)--something our founding fathers intentionally warned should never happen. 

Justice Clarence Thomas in the 2004 Elk Grove Unified School District v. Newdow decision put it succinctly when he explained his concurring deciding argument in that case. He stated, 

"Quite simply, the Establishment Clause is best understood as a federalism provision—it protects state establishments from federal interference but does not protect any individual right."

He goes onto mention,

"I would welcome the opportunity to consider more fully the difficult questions whether and how the Establishment Clause applies against the States. One observation suffices for now: As strange as it sounds, an incorporated Establishment Clause prohibits exactly what the Establishment Clause protected—state practices that pertain to “an establishment of religion.” At the very least, the burden of persuasion rests with anyone who claims that the term took on a different meaning upon incorporation. We must therefore determine whether the Pledge policy pertains to an “establishment of religion.”

In other words, Justice Thomas made the strong constitutional argument that the Establishment Clause must not be selectively incorporated in this case to the fourteenth amendment because this case was not regarding 'individual rights'--it was a state's rights case and the decision must rest in the hands of the state. The founding fathers would agree.

Understanding the founding documents, the intentions of the framers, and our Constitution is crucial to maintaining American freedoms--particularly the first amendment and rights to religion. We live today in a society that values secularism to the point that religion is deemed the enemy of freedom and pursuit of happiness. The separation principle in America has taken on the French definition of secularism in many instances- where religion is to be silenced and kept outside of the public sphere-causing further divides in the democratic republic.

The solution to all of this is reading the founding documents, understanding religion as a healthy and normal part of freedom, and appointing judges who understand the Constitution well and historically. Be aware that when you google the Establishment Clause you may get the typical 'an act to keep religion out of the public sphere' narrative. A narrative not only untrue, but intentional in its deception to our founding principles.

Works-Cited:

County of Allegheny v. American Civil Liberties, Greater Pittsburgh Chapter, OYEZ https://www.oyez.org/cases/1988/87-2050

Eberle, Edward J. "Roger Williams on Liberty of Conscience," Roger Williams University Law Review: Vol. 10 : Iss. 2 , Article 2., 2005 https://docs.rwu.edu/rwu_LR/vol10/iss2/2

"Establishment Clause." Legal Information Institution, Cornell Law School. https://www.law.cornell.edu/wex/establishment_clause

"Facts And Case Summary--Engel v. Vitale." United States  Courts https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-engel-v-vitale

Justice Thomas. "Elk Grove Unified School District v. Newdow." U.S. Supreme Court, JUSTIA https://supreme.justia.com/cases/federal/us/542/1/#tab-opinion-1961606

Madison, James. "From James Madison to Edward Livingston, 10 July 1822". Founders Online, National Archives https://founders.archives.gov/documents/Madison/04-02-02-0471#:~:text=I%20sincerely%20wish%20your%20execution,expound%20and%20apply%20the%20law.

Madison, James. "Memorial and Remonstrance Against Religious Assessments, 1785". Americans United For Separation of Church and State, https://www.au.org/wp-content/uploads/migration/pdf_documents/madisons-memorial.pdf

Munoz, Vincent Phillip. "The Original Meaning of the Establishment Clause And The Impossibility Of Its Incorporation." Journal of Constitutional Law, v. 8:4, Aug. 2006 file:///C:/Users/rassily/Documents/The%20Original%20Meaning%20of%20the%20Establishment%20Clause%20and%20the%20Impossib.pdf

Williams, Roger. "The Bloudy Tenet of Persecution," July 15, 1644 http://www.reformedreader.org/rbb/williams/btp.htm