The True Meaning of the Establishment Clause - a Position Paper from the Center for Inquiry Office of Public Policy

THE TRUE MEANING
OF THE ESTABLISHMENT CLAUSE





A POSITION PAPER FROM
THE CENTER FOR INQUIRY
OFFICE OF PUBLIC POLICY


AUTHOR: EDWARD TABASH, ESQ.






REVIEWING COMMITTEE: PAUL KURTZ, Ph. D., THOMAS W. FLYNN, DAVID
KOEPSELL, J.D., Ph. D., RONALD A. LINDSAY, J. D., Ph. D., TONI VAN PELT



DATED: MARCH, 2007

Copyright © 2007 Center for Inquiry, Inc. Permission is granted for this
material to be shared for noncommercial, educational purposes,
provided that this notice appears on the reproduced materials, the full
authoritative version is retained, and copies are not altered. To
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THE TRUE MEANING OF THE ESTABLISHMENT CLAUSE
INTRODUCTION
Perhaps no provision of the Constitution has been the subject of as much debate and
controversy as the Establishment Cause of the First Amendment. (“Congress shall make no law
respecting an establishment of religion … .”) Different interpretations of the Establishment
Clause abound. However, although many interpretations of the Clause have been offered, in the
last few decades there have been primarily two opposing viewpoints: One view is that the
Establishment Clause commands strict government neutrality on all religious issues, including
neutrality between religious beliefs and nonreligious beliefs. The other view is that the
Establishment Clause only forbids the government from favoring one religion over others, but
does not prevent government from aiding religion in general, as long as it does so evenhandedly.
The latter interpretation is often referred to as the “nonpreferentialist” view. Several Supreme
Court justices, including the late Chief Justice, William Rehnquist, have endorsed the
nonpreferentialist interpretation. However, a majority of the Court has rejected this interpretation
and has ruled that the government must be neutral between believer and nonbeliever.

Although the currently prevailing view is that the Establishment Clause mandates
neutrality between belief and nonbelief, this position is continually being challenged. Obviously,
those who favor unrestricted aid to religion and symbolic endorsement of religious beliefs
continue to argue in favor of the nonpreferentialist interpretation. The stakes in this controversy
are high. If the nonpreferentialist position is accepted, we may see coercive prayer and religious
instruction in the public schools, religious symbols and ceremonies in public places, and
government funds being funneled in large amounts to religious organizations. We may also
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witness expanding censorship and substitution of religious accounts of the origins of life in place
of evolution.

It is the purpose of this position paper to examine critically and objectively the intent of
the Founders in proposing and adopting the First Amendment and, in doing so, to determine the
proper interpretation of the Establishment Clause. We will begin by summarizing the arguments
that have been advanced in favor of the nonpreferentialist interpretation. We will then consider
the history behind the First Amendment, in particular the views and actions of Madison and
Jefferson, whose beliefs about the separation of church and state are universally acknowledged
as critical in understanding the intent of the First Amendment. We will also examine in detail the
debates in the First Congress concerning the Establishment Clause and the evolution of the draft
language as the Clause was considered by the House, Senate, and subsequently a conference
committee. Contrary to the claims of the nonpreferentialist camp, the views of Jefferson and
Madison, in combination with the evolution of the language of the Clause in the First Congress,
demonstrate convincingly that Congress did not intend to permit government support of religion.
Indeed, the First Congress explicitly considered and rejected draft amendments that would have
prohibited Congress only from giving preference to one religion over others. When the views of
Jefferson and Madison and the legislative history of the Establishment Clause are thoroughly
examined, the conclusion that has the most historical support is that the Founders intended to
prohibit any aid to religion and to require strict neutrality between believer and nonbeliever.


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THE NONPREFERENTIALIST INTERPRETATION

A number of scholars and jurists have advocated the nonpreferentialist interpretation of
the Establishment Clause. However, probably the most influential statement of this position is
contained in the dissenting opinion of William Rehnquist in Wallace v. Jaffree, 472 U.S. 38
(1985), which was written a year before Rehnquist became Chief Justice. In this case, the
Supreme Court struck down as unconstitutional an Alabama moment-of-silence statute because
the history of the enactment of this statute revealed that it was intended by the state legislature as
a vehicle for reintroducing state-sponsored prayer in Alabama public schools. In his dissent,
Rehnquist argued vigorously that the Founders never intended the First Amendment to require
government neutrality between “religion and irreligion.” 472 U.S. at 113.

Let us examine Rehnquist’s argument. Rehnquist begins his dissenting opinion by
rejecting the metaphor of a “wall of separation between church and state” as “misleading.” He
notes that Jefferson coined this phrase in 1802, about thirteen years after Congress proposed the
Bill of Rights. He also notes that Jefferson was in France at the time of the adoption of the Bill of
Rights and suggests that this fact means that Jefferson is “a less than ideal source of
contemporary history as to the meaning of the Religion Clauses of the First Amendment.”
472 U.S. at 92.

Having dismissed the relevance of Jefferson’s views, Rehnquist then invites us to focus
on the debates in the First Congress over the First Amendment and some (but significantly, not
all) of the different versions of the amendment that were proposed. The evidence that Rehnquist
presents is both positive and negative in nature. The positive evidence derives principally from
some remarks Madison made during the debate in the House of Representatives. The language
under consideration at the time was the language that emerged from the House Select
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Committee. The proposed amendment provided that: “No religion shall be established by law,
nor shall the equal rights of conscience be infringed.” One of the representatives expressed the
concern that this language might prohibit courts from hearing lawsuits that sought to compel
parishioners to fulfill their financial commitments to churches.

Madison responded to the representative’s remarks by stating that the insertion of the
word “national” before the word “religion” in the draft amendment would take care of this
concern. Madison then added that he thought the amendment was designed to prevent one or
more sects from obtaining “a pre-eminence” in the country as a whole and establishing “a
religion to which they would compel others to conform.” From this exchange, Rehnquist infers
that it is “indisputable” that Madison viewed the amendment only as a means “to prohibit the
establishment of a national religion, and perhaps to prevent discrimination among sects.” 472
U.S. at 98.

With respect to the negative evidence, Rehnquist points out that nowhere in the records
of the debate did Madison or anyone else specifically state that the amendment was designed to
require the government to be neutral between believers and nonbelievers.

From this positive and negative evidence, Rehnquist concludes that those who proposed
and adopted the First Amendment were “definitely not concerned about whether the government
might aid all religions evenhandedly,” and that there is not “the slightest indication” that they
thought the government had to be “absolutely neutral as between religion and irreligion.” 472
U.S. at 99. Rehnquist concludes his dissent by saying that nothing in the First Amendment
prohibits any generalized endorsement of prayer or other aspects of religious belief. 472 U.S. at
113.
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Rehnquist’s argument has been influential, but an objective analysis of the evidence
Rehnquist presents reveals that it is unconvincing. Most importantly, he ignores some critical
evidence, including versions of the amendment that were rejected in the Senate that would have
allowed for nonpreferential aid to religion. In addition, Rehnquist improperly ignores the
struggles over religious liberty that took place immediately before the debate over the Bill of
Rights. The First Amendment did not just pop into the heads of the Founders from nowhere. In
the 1780’s there were vigorous debates over the scope of religious freedom, especially in
Virginia. In the Virginia debates, both Madison and Jefferson played leading roles. Furthermore,
even though Jefferson was in France at the time of the First Congress, he regularly corresponded
with Madison, and many historians agree that Jefferson was instrumental in persuading Madison
to push for a Bill of Rights. It is historically inaccurate to infer that Jefferson had little role in
shaping the First Amendment. Taken together, all these points effectively disprove Rehnquist’s
thesis. A more detailed discussion of these points follows.

JEFFERSON AND MADISON: ARCHITECTS OF FREEDOM OF CONSCIENCE

While the future fourth president of the United States, James Madison, was the principal
drafter of the First Amendment, his main ally and mentor in the realm of relations between
government and religion was the future third president of the United States, Thomas Jefferson.
The efforts of these two men, along with the Framers of the original Constitution and the
members of the First Congress, leave a clear historical record that those who drafted the
Constitution and the First Amendment intended government neutrality in matters of religion and
did not intend to allow government to favor belief over nonbelief.
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In June, 1779, Jefferson was elected governor of Virginia. Shortly thereafter, he had
introduced into the Virginia legislature a bill to establish religious freedom. This proposed statute
provided that a person’s civil rights should not depend in any way on that person’s opinions on
religion. Further language stated that everyone should be free to profess and to argue for any
view on matters of religion, and that no one’s legal rights should depend in any way on those
views, whatever they may be. Most significantly, the bill proposed that “no man shall be
compelled to frequent or support any religious worship, place, or ministry whatsoever” (Stokes
1950, pp. 392-394) (emphasis added).

James Madison was, at the time of the bill’s introduction, a member of the council of
state, an advisory body to the governor. Thus began a lifelong collaboration between these two
great Founders. One of their primary areas of collaboration was in securing religious freedom,
first in Virginia and then in the entire United States. One of the leading scholars of church-state
relations in the United States concludes that although “Jefferson is almost entirely responsible
for … composition [of the Virginia statute for religious freedom], James Madison was the most
potent force in securing its adoption” (Stokes 1950, p. 392).

This struggle to secure religious liberty was not easy. The introduction of Jefferson’s bill
commenced a seven-year effort to secure religious freedom in Virginia, as the bill was defeated
when first introduced and was not adopted until 1786. In fact, Jefferson was already in France at
the time it was finally adopted. Based on Rehnquist’s facile reasoning, this could imply that we
should not look to Jefferson’s views to understand the significance of this statute. Obviously,
such reasoning is fallacious. Jefferson drafted the bill and Madison helped oversee its eventual
enactment into law. Madison later used the bill as a model for the First Amendment. Thus,
Jefferson’s influence on the First Amendment was exercised through Madison.
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Not only was Jefferson’s bill not enacted at first, but a few years after introduction of this
measure, opponents of religious liberty (including Patrick Henry) actually tried to enact a
measure that would have imposed a tax or assessment to support the clergy of the various
Christian denominations in Virginia. In 1785, Henry pushed the legislature to adopt his proposal
for religious assessments. It was in opposition to this proposal that Madison wrote his famous
Memorial and Remonstrance (reprinted in Alley 1985, p. 56). In other words, Madison wrote in
opposition to “nonpreferentialist” support of religion. In support of his position, Madison wrote
that the religion of every person must be left to the conviction and conscience of that person.
Madison went on to argue that our opinions in matters of religion depend only upon the evidence
contemplated by our own minds and cannot follow the dictates of others. Addressing the
argument of proponents of the assessment that it only required a small contribution from
taxpayers, Madison also warned that the same government authority that can force someone to
contribute “three pence” to any individual religious establishment can also compel other types of
support for any other religious establishment in all cases. Madison’s efforts were successful in
defeating the assessment proposal.

From this we can already see that Madison opposed government aid to religion, even
when this aid was distributed among religious institutions generally. Madison and Jefferson were
both adamantly opposed to any mixing of religion and government and thought it critical that the
state should not support or endorse any religious belief (or nonreligious belief). Jefferson’s views
on this issue can be gleaned from his writings around this time. For example, in his Notes on
Virginia (written in 1787) he observed:

The legitimate powers of government extend to such acts only as are
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injurious to others. But it does me no injury for my neighbor to say
there are twenty gods or no god. It neither picks my pocket nor breaks
my leg. (Koch and Peden 1944, p. 275).


Simply put, religious matters lie entirely outside the purview of government. The state has
absolutely no business in suggesting, endorsing or enforcing any type of belief about gods.

As indicated, Jefferson’s bill was finally adopted by the Virginia General Assembly in
1786. Madison reintroduced the bill shortly after the assessment battle was over, sensing that the
time was ripe to have the bill adopted. His sense of timing was correct. The Virginia Statute for
Religious Freedom became the first major enactment of any legislative body in the world for
protecting freedom of conscience against the tyranny of any religious majority. Jefferson was
enormously proud of this accomplishment, and it is one of the three achievements noted on his
tombstone. Scholars have concluded that the passage of this bill was highly influential, and
helped shape the views of many regarding the relationship between church and state: “[O]wing
to the political leadership of Virginia at this formative period in our history, and the high
standing of her statesmen in the Federal Constitutional Convention, the document had a very
great influence on establishing religious freedom in this country” (Stokes 1950, p. 394).
Acknowledging Jefferson and Madison’s collaboration is thus critical for having a proper
understanding of the Establishment Clause.

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THE CONSTITUTION

In the summer of 1787, fifty-five delegates gathered in Philadelphia to draft the original
Constitution of the United States. The original Constitution itself has only one provision that
addresses religion and that is a provision that draws a sharp boundary between church and state.
In Article VI, Clause 3, the Founders prohibited all religious tests for public office. (“no
religious test shall ever be required as a Qualification to any Office or public trust under the
United States”). That this provision is the sole reference to religion in our Constitution is both
truly remarkable and significant. As some scholars have noted:
God and Christianity are nowhere to be found in the American constitution, a reality
that infuriated many at the time. The U.S. Constitution … is a godless document. Its
utter neglect of religion was no oversight; it was apparent to all. Self-consciously
designed to be an instrument with which to structure the secular politics of individual
interest and happiness, the Constitution was bitterly attacked for its failure to
mention God or Christianity. (Kramnick and Moore 1997, pp. 27-28).

It is also significant that during their deliberations, when they had difficulty working out
consensus on various issues, the delegates specifically refused suggestions that they pray for
guidance (Pfeffer 1967, p. 122).

The Founders understood that the prohibition of any religious test meant not just that
persons seeking public office could not be required to subscribe to a particular religious belief,
but that they could not be required to subscribe to any religious belief. Madison, in Federalist
No. 52, defended the prohibition of any religious test for public office. He wrote that public
office should be open to “merit of every description” without regard to any “profession of
religious faith” (Rossiter 1961, p. 326). Similarly, on October 17, 1788, in a letter to Jefferson,
Madison was contemptuous of the objections to the prohibition of any religious test for office
because those objections were rooted in a prejudiced concern over “Jews, Turks & infidels”
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