This post by Joseph C. Sommer originally appeared at Humanism by Joe.
Leaders of the Religious Right claim that government has authority to promote religion. They say the First Amendment’s prohibition on laws “respecting an establishment of religion” prevents only the establishment of a national church such as exists in some European countries. The historical record refutes their view.
Many persons overlook the fact that the U.S. Constitution grants only limited powers to the federal government. James Madison called the Constitution “a bill of powers.” He explained that “the powers are enumerated and it follows that all that are not granted by the Constitution are retained” by the people.
Because the federal government is not given authority by the Constitution to promote or regulate religion, it is without power to act in the field.
As Richard Dobbs Spaight, a North Carolina delegate to the Constitutional Convention, said about the Constitution’s treatment of religion: “No power is given to the general government to interfere with it at all. Any act of Congress on this subject would be a usurpation.”
When ratification of the Constitution was being considered by the states, Madison explained: “There is not a shadow of right in the general government to intermeddle with religion. Its least interference with it would be a most flagrant usurpation.”
At the ratifying conventions, however, demands were made that this lack of power be made explicit in the Constitution by a specific guarantee of religious freedom. Madison agreed to have the requested protection added to the document.
With Madison leading the process, Congress placed the guarantee in the First Amendment. In doing so, it rejected early drafts that protected against only the establishment of a national church. Those drafts would have allowed nonpreferential governmental aid for religion.
Consistent with the Constitutional Convention’s decision to deny the government any power to deal with religion, the language adopted for the First Amendment bans not just a national church. Instead, it prohibits any laws “respecting” an establishment of religion. Church-state scholar John Swomley explains that the word “respecting” meant then, as it does now, concerning, touching upon, in relation to, or with regard to.
Moreover, constitutional historian C. Herman Pritchett states: “The phrase ‘establishment of religion’ must be given the meaning that it had in the United States in 1791, rather than its European connotation…. It was … nonpreferential assistance to organized churches that constituted ‘establishment of religion’ in 1791 and it was this practice that the Amendment forbade Congress to adopt.”
Pritchett’s view is supported by the fact that in the six states that still retained establishments in 1791, none had an establishment of a single church. Each supported multiple denominations of Christianity.
Of course, those six states eventually followed the example of the federal government by separating church and state. In doing so, they interpreted the separation principle as calling for an end to their nonpreferential support of religion.
Additionally, the writings of Madison and other founders show that nonpreferential governmental support was considered “establishment of religion” in the parlance of the time. For example, as a member of the Virginia House of Delegates, Madison successfully opposed a bill that would have granted nonpreferential tax support for Christian education. Although the bill sought to provide aid for all Christian denominations, Madison repeatedly referred to it as a proposed “establishment.”
Further, President Thomas Jefferson knew that the federal government is precluded from promoting religion in any manner – whether preferential or nonpreferential. In refusing to proclaim a national day of prayer, he said: “I consider the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises.”
The U.S. Supreme Court has carefully reviewed the history behind the First Amendment and repeatedly affirmed that the Establishment Clause prohibits more than the establishment of a state religion. As the court said in Abington School District v. Schempp (1962), “this Court has rejected unequivocally the contention that the Establishment Clause forbids only governmental preference of one religion over another.”
The court pointed out in Everson v. Board of Education (1947) that after the Fourteenth Amendment made the First Amendment applicable to the states, the Establishment Clause means that neither the federal government nor a state “can pass laws which aid one religion, aid all religions, or prefer one religion over another.” And in Board of Education of Kiryas Joel Village School District v. Grumet (1994), the court said governments may not show a preference for “religion to irreligion.”
Sheila Suess Kennedy sums up the matter by observing: “Courts and historians have agreed that ‘establishment’ means to endorse, sponsor, or otherwise favor any particular religion or religion itself.” (Emphasis sic.)
Separation of government and religion has given Americans more religious freedom than is possessed by any other people. It has allowed religion to thrive in this country. And it has enabled the U.S. to avoid the types of bloody religious conflicts seen throughout history and in much of the world today.
For those reasons, church-state separation should be one of our most treasured national principles.
Reprinted with permission from the author.
Joe Sommer is an attorney who retired from the Ohio state government after spending 30 years in the public sector. He is a longtime member of the American Humanist Association, the Freedom From Religion Foundation (currently servicing as the Ohio representative on its board of delegates), and Americans United for Separation of Church and State. The American Humanist Association certified him as an Advocate for the Humanist philosophy. He is a volunteer attorney for the American Humanist Association’s Appignani Humanist Legal Center.
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