The Establishment Clause and Religion

By Sanjay Dureseti

Sanjay Dureseti is a sophomore at the University of Pennsylvania.

Drawing concrete lines between the United States’ deeply entrenched religious influence and its political institutions has always been an impossible task. From Thomas Jefferson’s efforts to prevent the Church of England’s stranglehold on Virginia’s colonial government to modern-day protests against public school prayer, the country’s legal history is filled with instances of the enduring battle between religious liberty and federal regulation.

The separation of church and state finds its roots in the Constitution- specifically, in the Establishment Clause of the First Amendment. While the Supreme Court’s view of the Establishment Clause has evolved over the years, modern interpretational precedent was set in Everson v. Board of Education (1947).The case expanded the Establishment Clause beyond the purview of the federal government, as it used the Due Process Clause to bind states to the same standard of religious neutrality that Congress abides by. [1] The decision allowed the development of a more secular brand jurisprudence throughout the twentieth century. In addition, cases like Flast v. Cohen (1968), which permitted taxpayers to take legal action against governmental support for religion, and Lemon v. Kurtzman (1971), which restricted federal funding to parochial schools, have ensured the Establishment Clause’s wide-ranging application. [2][3]

As with most constitutional subjects, however, there has been a prominent strain of ideological opposition to the prevailing opinion of the Supreme Court. Conservative originalists, typified by Justices Antonin Scalia and Clarence Thomas, have taken a very literal stance on the Establishment Clause, deeming governmental involvement in religion inappropriate only when it directly funds or encourages religious activity. Take Town of Greece v. Galloway (2014), a case in which a town was accused of violating the Establishment Clause by opening town meetings with a prayer from volunteer chaplains. [4] Justice Kennedy, joined by the entirety of the Court’s conservative wing, offered an opinion in line with the “coercion” theory, claiming that since Greece did not actively coerce non-adherents to join in the prayer, the town was in the clear. Justice Thomas, in a concurring opinion, went even further, advocating for a reversal of Everson by arguing that the Establishment Clause should only be applied on a federal level. [5]

Justice Antonin Scalia’s death, like with most issues facing the Supreme Court in the future, adds a new layer of ambiguity to the question of the Establishment Clause. In the tradition of Justices Thomas and Kennedy, a new originalist judge would restrict the ability of taxpayers to sue federal bodies for actions, like tax credits for those who support religious organizations, that aid the spread of religion. [6] Justice Kennedy and his red-blooded colleagues have also expressed no concern for the display of blatantly religious ornaments, like a statuesque depiction of the Ten Commandments, on government property. Ironically, the election of Donald Trump and the appointment of a virulently conservative justice to the bench would do much to break down the “wall” of separation between church and state that both the majority and dissenting groups advocated in Everson.

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[1] Chicago-Kent College of Law at Illinois Tech. "Everson v. Board of Education of the Township of Ewing." Oyez. https://www.oyez.org/cases/1940-1955/330us1 (accessed September 20, 2016).
[2] Chicago-Kent College of Law at Illinois Tech. "Flast v. Cohen." Oyez. https://www.oyez.org/cases/1967/416 (accessed September 22, 2016).
[3] Chicago-Kent College of Law at Illinois Tech. "Lemon v. Kurtzman." Oyez. https://www.oyez.org/cases/1972/71-1470 (accessed September 22, 2016).
[4] Chicago-Kent College of Law at Illinois Tech. "Town of Greece v. Galloway." Oyez. https://www.oyez.org/cases/2013/12-696 (accessed September 22, 2016).
[5] Erwin Chemerinsky, The Court after Scalia: The 2016 election and the fate of the wall separating church and state, SCOTUSblog (Sep. 12, 2016, 2:00 PM), http://www.scotusblog.com/2016/09/the-court-after-scalia-the-2016-election-and-the-fate-of-the-wall-separating-church-and-state/


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