Establishing the History of the Establishment Clause

Part Two.  

Larry Pahl

Copyright Feb. 5, 1996; 2000; 2004     ||  Go to footnotes ||  Back to Part 1.  ||

Thus a case whose decision was heavily influenced by the Religious Right, Lamb's Chapel, has become dispositive in Rosenberger.⁵³ The Court is now codependent with the Right in turning Establishment Clause doctrine on its head. Not only is the University of Virginia acting outside the bounds of the Establishment Clause in its decision not to fund Wide Awake, a proselytizing Christian "newspaper," it is only within the bounds of that Clause if it funds the religious entity! Justice Souter can certainly be forgiven for believing that James Madison would be appalled to find out that the Constitution requires the funding of a religious body!⁵⁴

The warfare between these two factions is intense. Ira Glasser, the executive director of the American Civil Liberties Union sent out an urgent letter at the end of 1995 appealing for funds to fight the growing number of religious liberty groups among the Religious Right. Naming specifically the Rutherford Institute, the American Center for Law and Justice, and other organizations working in the name of religious liberty, Glasser said:

newly empowered extremist groups in nearly every state are fanning the flames of intolerance and bigotry...[they} feel like they have permission to set fire to the Bill of Rights in courtrooms from coast to coast...this assault from the extreme right is unprecedented in both its scope and strategy. And it is particularly successful in advancing the religious agenda of the radical right.⁵⁵ (Emphasis in original)

Teresa Stack, a staff member with the liberal magazine The Nation, encouraged readers not to give up "while the lunatic Right hacks away at our basic freedoms in the name of their self-serving values."⁵⁶ Paul Starr, editor of The American Prospect, asks readers "Do you wonder whether anything can stop the right-wing takeover of America's political institutions?"⁵⁷

Can there be a reconciliation of the differing interpretations of history which keep a chasm between these two sides? Each side in the history debate tends to focus on only one part of the entire establishment terrain and that part greedily expands to claim sufficiency to explain the whole. For instance, modern separationists find not only a separationist intent in the Establishment Clause, but also a secular one. They claim that the government cannot favor religion. Because of this focus separationists often claim that the Framers of the Establishment Clause had the same commitment to a secular government, blind to religion or irreligion.⁵⁸ But by taking and defending such a doctrinaire line, separationists must ignore the evidence the modern Right marshals in abundance: The Northwest Ordinance recognized the positive effect of religion on society,⁵⁹ the early Congress passed prayer resolutions and acknowledged religious holidays, the government pays for chaplains, and most of the framers were unquestionably motivated by religious conviction. A partial view, prisoner to an ideology, cannot pretend to sketch the full parameters of Establishment Clause history.

A look at the positions taken by each of the sides in this debate on several court cases is instructive in sketching the fault lines. Glasser is incensed at the states--Virginia, Alabama, Georgia, Arkansas, Tennessee, and Mississippi--which have enacted laws that mandate prayer in public schools. There has been more congressional testimony on various proposals to amend the Constitution to mandate some form of meditative moment or prayer than on any other Constitutional issue in the last thirty years. Those against it, like Glasser and every modern Supreme Court that has faced the issue, see mandating prayer as a direct affront to the Establishment Clause. The state moves into the arena of exhortation, endorsement, and coercion by such a mandate, and the Supreme Court has deemed these inappropriate activities based on the Establishment Clause:

In Everson:

The First Amendment "requires the state to be a neutral in its relations with groups of religious believers and nonbelievers."⁶⁰

Neither a state nor the federal government...can pass laws which aid one religion, aid all religions, or prefer one religion over another...⁶¹

In Engel, the first school prayer case:

[The Establishment Clause]...Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion.⁶²

The fact of state "endorsement" as a signal to trigger transgression of the Establishment Clause was first used by Justice O'Connor to clarify the first two prongs of the Lemon test and the Court used that test in its analysis in Wallace v. Jaffree:

The purpose prong of the Lemon test asks whether government's actual purpose is to endorse or disapprove of religion. The effect prong asks whether, irrespective of government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval.⁶³

Douglas Laycock goes so far as to say that government neutrality to religion, which should condemn as unconstitutional any form of state-sponsored prayer, is the "nearly unanimous view of all modern justices," no matter what their ideological persuasion.⁶⁴

However true Laycock's conclusion may be, the opposing side--those legislators, motivated by their sense of grassroots approval who have pushed for prayer amendments including the 1964-5 Becker Amendment for voluntary school prayer, the 1980 Helms Amendment to restrict the Supreme Court's jurisdiction of state prayer, and the 1983 Hatch-Thurmond meditation Amendment--can use Laycock against himself in response.

Laycock explains that the practices of the Framers in passing prayer resolutions, utilizing chaplains, and engaging in public prayer themselves do not lead to the conclusion that these activities should pass constitutional muster in the present. Laycock says that to follow that reasoning would mean that

"the Alien and Sedition Acts are an authoritative interpretation of the Free Speech and Press Clauses, de jure segregation of schools in the District of Columbia is an authoritative interpretation of the Equal Protection Clause, and the many devices that led to near total disenfranchisement of black voters for most of a century are an authoritative interpretation of the Fifteenth Amendment...Reliance on post-ratification practice leads to such absurd consequences because it proceeds backwards. It lets the behavior of government officials control the meaning of the Constitution, when the whole point is for the Constitution to control the behavior of government officials.^"65

But a modern Gary Bauer, leader of a major pro-family religious network, admiring the virtue of our praying Founding Fathers, can use their example to call the modern Court's opinions--used by Laycock at least momentarily as a yardstick for Constitutional meaning--"ridiculous." Using their modern interpretations to arrive at the meaning of the Constitution is wrong because, to quote Laycock, it "proceeds backwards." The bottom line, as Laycock pointed out with the Founders, is the meaning of the Constitution not the practice of the government.

David Barton, whose books are a big-selling apologia for the positions of the modern Religious Right, has a chapter entitled "The Court's Early Rulings," which could act as a rebuttal to Laycock's modern rulings. Barton quotes first Supreme Court Justice John Jay, Justice James Wilson, Justice Joseph Story and Chief Justice John Marshall as all favorably disposed to practical Protestant establishment. Barton claims his chapter, which surveys 15 decisions from the first Court to the modern era, "will establish, by court record, that our Founders would never have tolerated the separation of church and state as it now exists."⁶⁶

The two opposing sides are both right. The modern Court has often championed the Madisonian-Jeffersonian ideal of church-state separation. At this the modern separationists revel. The early Court lived in a culture of Protestant domination where doctrinaire separation would have been impossible, politically and psychologically. At this the modern accomodationists rejoice. The resultant tension--popularly called cultural warfare--is magnified because these two political opponents are both right in their major premises, premises which appear to be in conflict!

It is the nature of political conflict that one of these two sides will prevail, at least in the short one. At present the accomodationist view seems to have upper hand. The new Congress is notoriously Republican and conservative, friendly to the Christian Right. This political power appears to be making inroads into the Court. The modern Court's "stonewall" stand for the principle of separation is cracking. Rosenberger may be the case where the corner was turned. Justices Rehnquist, Scalia and Thomas may be beginning their victory dance with the Right.

Orphaned prayer.

For the first time there are interest groups to mobilize support for what had been an issue without a power group: the issue of "getting prayer back into the public schools." While polls showed this was a sentiment shared by large numbers of Americans, ⁶⁷ few groups supported the idea after the Engel decision which, in the popular view, is the decision which "put God out." There were almost no interest groups other than churches which testified at the first post-Engel hearings in 1964. A favorable Congressional environment68 in the early 1970s opened the way for an increase in interest groups. It is a general rule in the American political system that when a large number of people feel strongly about an issue, individual Congressmen, sensitive to the national movements⁶⁹ and the desires of their home constituents, will gravitate to please them. How is it, then, that this majority has not translated into legislative success? Early proponents after Engel thought that it would.⁷⁰

First, the Founding Fathers made it hard to amend the Constitution, so "success" for school prayer forces requires more than just answering an opinion poll. It requires tremendous political effort and extended solidarity, public goods in perpetual short supply in the American political system. There has been persistence on the part of prayer amendment seekers, but no "pay-off" as yet.

In the early days after Engel there were insufficient interest groups to aggregate the desires of the majority electorate wanting school prayer.⁷¹ Individual congressmen, trying to respond to this atomized latent group, ended up offering 144 different prayer resolutions and 150 different amendments to the eventual school prayer amendment!⁷² In trying to speak to everyone they were speaking to no one. The Prayer Amendment proposed by Rep. Frank Becker of Long Island, introduced in 1962, sat in Rep. Celler's committee for two years while Becker worked to get the 218 signatures for a discharge petition. When Becker attained 161 signatures, Celler announced he would hold hearings beginning April 22, 1964. Without the political threat posed by these signatures, Celler would have likely left the amendment in the cellar. He was opposed to government-run school prayer.

President Kennedy had favored the Engel decision and President Johnson did nothing to alter the administration's position.⁷³ The mainstream denominations, alienated from their constituencies, according to some observers, were also in harmony with the separationist position of Engel. They did not favor a school prayer amendment.⁷⁴ In a masterstroke, 223 constitutional law professors filed a joint statement entitled "Our Most Precious Heritage,"⁷⁵ which further kept Congress from jumping on the back of a potential prayer stampede. According to the National Council of Church's Dean Kelley, Becker, going into the hearings, had the upper hand in Celler's committee, by a few votes, to get the Amendment to the House floor. But by the end of the hearings the count was reversed. His discharge petition remained fifty votes short.⁷⁶

The result of this political environment was that there was almost no groups representing the side which was apparently held by a majority of citizens, and there was expert testimony⁷⁷ and political momentum against the amendment. Jewish and Catholic groups weighed in for the amendment, as did Billy Graham. Graham could have been, perhaps, a greater power to force the issue in committee, as he was already a darling to American Presidents for inaugural prayers and moral suasion⁷⁸ , but he refused to testify, contenting himself with statements at press conferences and speaking engagements. There was no Religious Right, no Moral Majority, no Christian Coalition in 1964. But now there was a "need" for one, in the sense that there was an orphaned constituency. The mainstream denominations had developed liberal seminaries which imbibed the same liberalism that led the Court to its decision in Engel. That Court decision was in harmony with their existing thinking. These denominations did not speak for the scattered bands of fundamentalists and evangelicals who absorbed deeply the shock of Engel. The closest group to do so was, perhaps, The National Association of Evangelicals which represented over two million members at that time, but their testimony at the Celler hearings was short and muted. The NAE represented existing denominations, and not atomized individuals in large, independent churches such as it now does.⁷⁹ There was no coordination nor networking between Graham, the evangelicals, Catholics and Jews.

Powerful minority leader, Senator Everett Dirksen of Illinois, was determined in 1966 to succeed where Becker had failed. He introduced a constitutional amendment on March 22, 1966 that prohibited the Constitution from inhibiting any school administrator from providing for voluntary prayer by students. Dirksen went about trying to get his votes the "old fashioned way", through his vast influence and the oral persuasion built on the promise of return favors. The bill was in the committee of Senator Birch Bayh from Indiana, who opposed the measure, but recognized the need to please the as yet unrepresented American constituency favoring school prayer. Bayh's philosophy was to outfox Dirksen by offering a sense-of-the-Senate resolution endorsing voluntary prayer--a measure he did not really agree with⁸⁰ --just before taking the Dirksen Amendment from committee to the floor. This would give the Senators a prayer resolution in which they could tell the folks back home that had "voted for God" while defeating the proposed rearrangement of the First Amendment.

Floor debate on the Dirksen Amendment lasted three days and resulted in 49 "yea" votes, short of the required 67. Thirty-three senators had voted "yea" on the Bayh resolution. Of those 33, 28 voted "nay" to Dirksen. Bayh's symbolic maneuver added nothing to the Constitution with its statement that

"nothing in the Constitution or the Supreme Court decisions relating to religious practices in our public schools prohibits local school officials from permitting individual students to engage in silent, voluntary prayer or meditation."⁸¹

The new Amendment But the current Right is more active and more savvy in the political arena than it was several decades ago. Ralph Reed, the political leader of the Christian Coalition, has become a master of coalition building among Catholics, Jews, and various Protestant religious groups. And for the first time, a Constitutional amendment with some hope of popular and extensive special interest group support is on the legislative table. It is not a clone of the former "let's get prayer back into the schools" bills. It is more sophisticated and couched in the language of the grand American heritage of religious liberty. Rep. Henry Hyde (R-IL), chairman of the House Judiciary Committee, introduced in December of 1995 a proposed Constitutional change, The Religious Equality Amendment, as follows:

Neither the United States nor any State shall deny benefits to or otherwise discriminate against any private person or group on account of religious expression, belief, or identity; nor shall the prohibition on laws respecting an establishment of religion be construed to require such discrimination.⁸²

Robert Dugan, a leader of the National Association of Evangelicals, writes that the

"great virtue of Hyde's Amendment is that it would correct the courts' misconstruction of the Establishment Clause, thus restoring the original understanding of that clause. The prohibition on laws respecting an establishment of religion should no longer be construed as requiring discrimination against persons on religious grounds, whether or not public monies are involved. No more ambiguity. The time has come for religious citizens constitutionally to be guaranteed full rights to participate in public life. This Hyde Amendment will do exactly that."⁸³

But a proper look at the history in dispute here would show that there need be no "zero-sum" battle over the issue of the Establishment Clause. The facts allow for a Hegelian synthesis with each side a winner. Because the disputants here are ideologically predisposed to be combatant, it is not likely that a display of the lack of contradiction in their position on the Founders will work to effect their reconciliation.

The following chart proposes a resolution of the Establishment Clause
positions of modern separationists and the latter-20th Century Religious
Right.  Each side positions the Founders in such a way as to defend their position. A dispassionate look at the framing generation is central to this analysis:

Report card. The analysis here, which separates the founders' position on "church-state separation" and their view of the best relationship of "politics and religion" is critical to resolving the two sides. Justice Ginsburg in her dissent in Capitol Square Review v. KKK, a case which allowed the Klu Klux Klan to place a cross on public property, wrote "the aim of the Establishment Clause is...to uncouple government from church."⁸⁴ She favorably references a law review article by Kathleen Sullivan which reasons that the negative Constitutional bar against establishment of religion implies affirmative establishment of a secular public order.⁸⁵ This may be logical reasoning, but it does not reflect the reasoning of the Founding thinking on the Establishment Clause. Their desire was not to obliterate religion from the public sphere. They did not envision their new government establishing a public order so secular that it would appear antagonistic to religion. In his engrossing recounting of the era, William Lee Miller concludes,

"A great flood of religious history thus flowed over and around the American Founders, leaving much of their attachment to the Enlightenment (and thus to a secular public order) on the river bottom...America was already Protestant at birth and had to endure no Reformation, Counterreforamtion, or religious wars."⁸⁶

Religion was taken for granted, its existence an evidence of morality, a public good. It was less the anticlerical attitude of the Enlightenment than the remembrance of church persecution of minority sects such as the Puritans and separatist Pilgrims, which fueled the founding desire to draft an anti-Establishment Clause.⁸⁷ Anticlericalism had little place in an America that had, according to Henry James in his biography of Nathaniel Hawthorne,

No sovereign, no court, no personal loyalty, no aristocracy, no church, no clergy, no army, no diplomatic service, no country gentlemen, no palaces, no castles, nor manors, nor old country houses, nor parsonages, nor thatched cottages, nor ivied ruins; no cathedrals, nor abbeys, nor little Norman churches...⁸⁸

The Enlightenment desire for freedom from superstition, such as seemed to motivate Jefferson, worked in conjunction with the "enthusiasm" of the dissenting sects, such as that displayed by Baptist John Leland, to forge a common fight for religious liberty and church-state separation against the common "enemy" of traditional religious orthodoxy. But according to Miller this political constellation of rationalist and fundamentalist broke up when

"pietism discovered its latent incompatibility with rationalism and rejoined traditional orthodoxy... American denominational Protestantism is the outcome of this reunion, under the conditions of religious freedom achieved during the earlier alliance."⁸⁹

When the religious freedom which rationalist and religionist fought for came to fruition, the maverick religionists found that that the religion they wanted to freely express resembled the stuffiness of orthodoxy more nearly than the rationalist liberality. As a result a Protestant civic religion dominated Nineteenth Century America. God-talk too permeated the speech of even enlightened founders such as Jefferson (who was in favor of having churches endow a religion chair at his University of Virginia), Madison, Franklin, Washington, John Adams and Paine, to name some of the common heroes. Their sentiments for antiEstablishment did not come because they wanted to quiet religious voices--their own were very religious!--but because they wanted to enlarge the sphere for religious expression.⁹⁰ The men who wanted to separate church and state plainly did not want to separate politics and religion.

Kathleen Sullivan, and Justice Ginsburg in citing her, can say that the Establishment Clause requires a secular outlook, and can fight for this view, promote it and insist on it.⁹¹ But in so doing they are not extracting the meaning of the Establishment Clause from its historical situation. The historical moorings of the Right are sunk deeper in the reality of the founding period that that of the secular separationists.

But that is only round one. Round two involves the question of the momentous separation decision. The history of the world to a large extent, until the American experiment with liberty, is one of combined civil and religious authority. James Madison wrote:

Until Holland ventured on the experiment of combining a liberal toleration with the establishment of a particular creed, it was taken for granted, that an exclusive & intolerant establishment was essential, and notwithstanding the light thrown on the subject by that experiment, the prevailing opinion in Europe, England not excepted, has been that Religion could not be preserved without the support of Government nor Government be supported without an established religion, that there must be at least an alliance of some sort between them. It remained for North America to bring the great and interesting subject to a fair, and finally to a decisive test.⁹²

In most aboriginal societies the engines of church and state were an indistinguishable conglomerate and even where they were cleanly separated, as in medieval Europe, one so controlled or was intertwined with the other that their separation was unthinkable or impossible. Steven Smith, after surveying the options that were available to the American founders, draws the following conclusion about the meaning of their decision to separate church and state:

...the essential meaning of the decision was clear enough. First, the national government, unlike European and colonial governments, was not to interfere in the internal affairs of churches. Second, churches were to have no official representation or direct authority within the structure of government.⁹³

Thus, the wording of the Establishment Clause--an "establishment of religion"-- refers to religion in an organized, formal sense. In other words, Smith writes, to churches. With this understanding, there is no conflict with the Clause and the kind of public forum for religious voices--unfettered by government--that Robert Carter has argued for.⁹⁴ The suggestion by some that Carter is trumpeting from the left the same message as that of the Religious Right must be declined here. Carter argues forcefully for religious equality for all groups, to avoid majority and minority labels. But the Religious Right fights most fully for its voice, its values, and ultimately its outlook. Individual parts of the conglomerate Right share a similar theology and represent only one slice, a very powerful and vocal slice, of the entire Christian community. In that sense the Right is no different than a formal religion or denomination, that is, a church. Its growing power thus presents the same kind of threat the Founders had in mind when they wrote the Establishment Clause. It is one thing when an individual religionist wants to express his or her political views. That is simply free exercise of religion. But when a group of religionists pushes for their agenda so as to legislate it, what is the practical difference between that and establishing a church such as the Anglican Church in colonial Virginia or the Catholic Church in Italy?

Round two finds the modern separationists closer than the modern Right to the Framers on the issue of formal separation between the institutions of church and state.⁹⁵ Modern secular separationists, while they go too far to obliterate any vestige of religion from public life, are nonetheless closer to the Framers in their insistence on the separation of the institutions of church and state. The Framers knew the evil effect on liberty caused by a dominant church. The modern Religious Right seems insensitive to the history of the Puritan imitation of the inquisition that could, for instance, banish Roger Williams in the midst of a New England winter. In their willingness to seek greater forms of accomodation, they ignore the warning blast of the historical trumpet inherent in the Establishment Clause. All sides agree the minimal, baseline meaning of the Clause is to prevent the formation of a formal state church. If the Religious Right is not in most senses a formal church vying for state power, then what is it?

A third area of comparison between the modern Right and modern separationists is that of their philosophical-theological apologia for the Clause. The Founders, whether Deists, skeptics or Protestants, defended the Clause from a religious outlook. Smith writes,

"The framers' generation instinctively explained these [religious liberty] rights on religious grounds, tracing their origins to the Deity...The present generation justifies rights on purely nonreligious grounds: rights are the products of utilitarian considerations, or of purely human concerns for equality and dignity. Modern thinkers adhere to these secular modes of justification even in attempting to explain why religion receives special constitutional treatment."⁹⁶

Here the modern Right is nearer the framing generation than the secular-insistent separationists. In two of the three areas examined (see the chart accompanying this section) the view of the Right seems to more closely capture the vision of the Framers. In shifting gears with their promised Constitutional Amendment proposal, the Right has moved away from the blunt, dead end prayer-in-school Amendments that have been so unsuccessful--and so out of sync with the Establishment Clause--in past decades. Such an Amendment would have been a tomb for the Establishment Clause, a gravemarker telling onlookers that a political majority took all meaning away from the Clause so it could be violated without immediate guilt. The new Amendment turns a corner which has opened more life and potential for a blossoming Establishment Clause. With the Right's pushing aside the secularist focus of modern scholars and Justices through this Amendment, Steven Smith tells us that we stand a better chance of gaining a consistent Establishment Clause jurisprudence. A greater freedom for religious opinion in the public sphere, as Robert Carter championed in his bigselling book⁹⁷ seems to be one of the potential bequests of this Amendment.

A major caveat in the new direction taken by the Right in this Religious Equality Amendment will be to see to what extent its beneficiaries are all people in need of religious equality and religious liberty protection, or to what extent the philosophy behind the Amendment ends up providing help only for the Faithful among the Right. If that is what happens the Amendment could indeed become a tomb and double as a sign marking the site of End of the Establishment Clause, the full ushering in of the Orwellian. As the fox guarding the henhouse, the Church of the Right will be the established organ for adjudicating no-establishment challenges. The High Court and the Legislature will have to bow to the amendment's words--now the Supreme law of the land--which say that the actions of this Newly Established Church do not--and can never--constitute an Establishment.

Establishment Clause--rest in peace.

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