In 2020, I taught an Osher Class on the First Amendment. I’m not going to write about that entire class today – it’s a very detailed set of ideas – but I am going to write about the “Freedom of Religion” part of this amendment in the wake of the Supreme Court’s decision last week about the coach who prayed on the 50-yard line of the football field after his high school team’s football game.
The First Amendment protects freedom of religion – in two clauses, the establishment and free exercise clauses. The meaning of these two clauses – and sometimes, the tension between them – has been the cause of much litigation. But I want you to look at the first word in this amendment – Congress. The first amendment (and the rest of the Bill of Rights) was added to the Constitution to assuage people’s concerns that the newly created national government was going to trample on people’s rights – but more specifically, that it was going to trample on the rights of states to do the things that Congress was being forbidden to do. The First Amendment was intended to restrict the ability of Congress to restrict people’s rights. Some states, for example, maintained an established church until well into the 19th century. That was not a problem for the writers of the First Amendment.
To answer the question of what the First Amendment meant to the people who wrote and ratified it, we need to look at its origins. This means looking at three things – the European Enlightenment, English and Colonial Common Law, and the process by which the Bill of Rights came to be added to the Constitution.
The Enlightenment encompassed a lot of ideas – but one of the idea was religious tolerance. Here’s one of my slides on that topic.
The background of our current arguments about the relationship between religion and government is based on the “original intent” of the people who wrote the Constitution – but they didn’t tell us what they meant, and, to the degree that we understand them, they disagreed with each other.
I’m going to let the next few slides speak for themselves:
In summary – what did Establishment of Religion look like in the 18th century?
Everyone had to go to church
Tax money went to support the church – but one of the justifications was that the church was the source of support for widows and orphans, because government wasn’t doing any of that
There was a required creed
Only ministers of the established church could administer the sacraments
Many institutions (colleges, businesses, government positions) required church membership as a criterion for admission.
But some states had multiple established churches – kind of like a licensing system rather than an exclusionary system.
Doctrine of Incorporation
To understand the current judicial understanding of the religion clauses of the First Amendment, you have to understand something called the Doctrine of Incorporation. So far as I can tell, this was pretty much made up by the Supreme Court in the 1920s. But it has been used since then to make the Bill of Rights applicable to the states through the Due Process Clause of the 5th and 14th Amendments. Trust me on this – what it means is that, over the years, the courts have decided that if the Congress cannot do something because of the Bill of Rights, then the states are forbidden to do it also.
Here's my slide that summarizes this:
This chart shows how case law has allowed the Doctrine of Incorporation to evolve over the 20th century:
Over these years, the Supreme Court has set forth a series of “tests” that laws relating to religion have to pass to avoid the pitfalls of the First Amendment. One of these “tests” came from the 1971 case Lemon v. Kurtzman, which focused on the permissibility of religiously-oriented activities in the public schools. The opinion in this case said that there was a 3-pronged test: 1) was the activity clearly secular; 2) did it have a neutral primary effect; and 3) did it avoid “excessive entanglement between government and religion. If a school activity that had religious implications avoided all of these pitfalls, it was Constitutionally permissible.
Last week’s Supreme Court opinion in Kennedy v. Bremerton School District vitiated the Lemon test and paved the way for a further mingling of religion and education, undoing almost 100 years of precedent.
I think that the justices who are trying to overturn these precedents are lying about their reasons, and I know that the people who wrote the Constitution would be astonished by all of this. They would also wonder what the heck Catholics are doing on the Supreme Court (six of the sitting justices are Catholics). It was illegal to practice Catholicism in all of the colonies except Rhode Island and Massachusetts, although the specifics and enforcement varied. Talk about original intent — these justices ignore it when it doesn’t suit them.
Wow! Just wow. Thanks!
Excellent commentary, Karen. Glad to have your opinions and interpretations.