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What is the Establishment Clause?

By Kevin Dowd
Updated May 17, 2024
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The establishment clause is the section of the First Amendment of the Constitution of the United States that reads, "Congress shall make no law respecting an establishment of religion." This clause prohibits the federal government from establishing an official religion or from favoring one religion over another. It also prevents the government from favoring religion over non-religion, or vice versa. Every person or group is meant to be safe from religious favoritism under the law, and it is more commonly known as the separation of church and state.

Put in place by the Founding Fathers, the establishment clause was a unique idea at the time. During that era, it was common for a country to have an official religion, and it was even more common for people of different faiths to be persecuted for their beliefs. Many who had immigrated to the United States did so for religious freedom. The clause was designed to end religious harassment by a government.

Parts of the Constitution tend to be vague, and this amendment is no exception. The Supreme Court’s first case that dealt with it was Everson v. Board of Education in 1947. While grappling with the issue of transportation for private religious schools, Justice Hugo LaFayette Black explained what the establishment clause meant at a minimum. He stated that neither a state nor the federal government could set up a church, pass laws to favor a particular religion, force any person to divulge his or her religious beliefs, punish any person for his or her beliefs, apply tax money to religious institutions, or participate in the affairs of religious groups.

The issue of private religious teacher salaries was considered in Lemon v. Kurtzman in 1971. Subsequently, it produced the Lemon test, which determines if a law is attempting to establish religion. It was decided that the particular statute must have a secular legislative purpose, the main purpose must not be to advance or inhibit religion, and it must not produce extreme intermingling of government and religion.

Similarly, Lynch v. Donnelly in 1984 produced another standard: the endorsement test. Justice Sandra Day O’Connor stated that no law or ruling could endorse or disapprove of religion. She believed that endorsing a specific religion would lead those members to think of themselves as particularly special, and disapproving of a specific religion would alienate those members.

The establishment clause has been heavily debated by both sides of the issue. Topics of school vouchers for private religious school attendees, prayer in school and public buildings, and religious monuments in public places are just some of the issues that have put the clause to the test since the 1940s. It is a topic of debate that appears to have no end.

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