The Supreme Court’s Evolving Interpretation of the First Amendment
The First Amendment is part of what is known as the Bill of Rights, the set of ten amendments which were added to the Constitution as a means to assuage the fears of the Anti-Federalists that the proposed new government did not adequately protect individual liberty and state sovereignty. The Religion Clauses sustained a number of draft revisions before the final version was ratified: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
No shortage of controversy has ensued over the precise meaning of these dual clauses, whether the disagreement is over the original meaning of the text, the Founding Fathers’ own divergent views of the relationship between church and state, or modern SCOTUS interpretation. For the present purposes, we will (1) briefly consider some of the major ideological currents which converged at the Constitutional Convention and together informed and shaped the religion clauses; (2) trace the Court’s evolving application of the disestablishment clause, particularly from 1947 to present; (3) trace the development and perhaps retrograded application of the free exercise clause from 1879 to the present; (4) examine the 2004 Locke v Davey case as a looking glass into the current interpretive model whereby the Court has essentially embraced a standard of neutrality and federalism.
Ideological Forces That Led to the First Amendment
Law professor John Witte Jr. identifies four major streams of thought which predominated in late 18th century America and which together served as the ideological forces behind the formation of the religion clauses. This brief survey intentionally ignores the practical realities of the political process whereby the necessity of compromise sometimes obscures what might be known about the “intent” of the law-makers. What should be mentioned, however, is that the First Amendment, along with the religion clauses, is itself the product of such political compromise. Those anti-Federalists who disfavored the new general government as proposed by the Federalists most often anchored their displeasure in the fear that the national government would be accorded too much power over the individual and the individual states. Men such as George Mason feared that without enumerated rights that the national government would tend toward the very tyranny the revolutionaries had just overthrown. Others, such as constitutional architect James Madison, responded with an argument that the national government was by nature and design self-limiting, and that specifically enumerating rights was unnecessary and potentially injurious to civil liberty. Nevertheless, political reality being what it is, Madison and other Federalists eventually conceded to include a Bill of Rights to foster ratification of the Constitution. The first of those rights involved the issue of religion.
That religion, along with its role in society and its relation to the state, would be of such importance in the minds of the Founders is clearly in view when one considers the four major streams of thought which predominated at the juncture in American history. Witte identifies those four as Puritan, Evangelical, Civic Republican, and Enlightenment. Puritan thought, though somewhat diluted from the early days of the Mayflower Compact and the early established colonies of New England, was still a force in the days of the Revolution and Constitutional Convention. Descendants of the Calvinists, the Puritans believed strongly in an institutional separation between church and state, but viewed both as being ordained by God and, though using different means, both seeking the same essential end. Ministers were barred from political office, and public officials barred from interfering with church business, but the Puritans allowed for, yea, favored a cooperation between church and state on a number of fronts.
The Puritans, along with the Evangelicals, represented the streams of thought which were explicitly theological in nature and source. The Evangelicals were essentially the descendants of the Great Awakening of the early and mid 18th century. While sharing a theological and biblical perspective on church and state, evangelicals emphasized individual freedom of conscience, and the disestablishment of state religions. The Civic Republicans were cousin to the Puritans, sharing the same moral outlook and seeing the need for the state to encourage religion for the maintenance of civic virtue. The quintessential example of this is Washington’s Farewell Address. John Adams was the leading proponent of the civic republican viewpoint, advocating for a “mild” establishment of religion for the propagation of unifying civic virtues for the breeding of good republican citizens. Civic republicanism differed, however, from the Puritan outlook in being far less denominationally specific, and in many cases sub-Christian in its theology (Unitarian, for the most part).
The final ideological influence identified by Witte is the Enlightenment. Just as the civic republicans were related to the Puritans with the latter being the more theologically robust of the two, those men influenced by Enlightenment thinking (particularly Jefferson, Franklin) were related in many ways to the Evangelicals, again, with a truncated or absent theological bases. Joseph Loconte and Henry May, however, point out how the American Enlightenment was quite mild in comparison to the French, and for the most part did not seek to completely throw off the theistic basis of human rights and individual freedom. So the two most theological streams of thought, Puritan and Evangelical, joined forces with the two more non-theological (either secular or less supernatural in theology) streams, the civic republican and enlightenment, as the primary ideological forces which converged at the Constitutional Convention and gave life to the religion clauses now under consideration. Since the early presidents who were also part of that community of “Founding Fathers” differed in their ideological persuasion (Washington and Adams were civic republican in outlook, Jefferson more enlightenment, Madison between evangelical and enlightenment), they also tended to differ in their actual official practices related to government and religion. However, and once again, since political pragmatism often overshadows ideological consistency, it is sometimes difficult to divine from the practices of particular public officials a precise interpretation of the First Amendment. So whereas presidential practice may be a helpful guide in many instances, it is not dispositive.
One thing seems certain: the religion clauses as originally interpreted and employed seem to disable only the national government, namely Congress, from making or enforcing laws touching on religion. For fifty years after the ratifying of the national constitution, several states continued to countenance established state churches, Massachusetts being the last to disestablish in 1833. With the passing of the 14th amendment after the Civil War and the rise of the modern welfare and regulatory state since the FDR administration, the Supreme Court’s overview of the religion clauses has increased exponentially and given rise to a plethora of high court cases which have shaped (or muddled) our understanding of the nature of the relationship between church and state, or religion and the culture.
Other factors that should be taken into consideration is the evolving nature of American society. From the late 18th century to the mid 20th century, that is, from the founding to the rise of modern FA jurisprudence, American society shifted from what could be considered a Protestant establishment to what many would consider a secular establishment. Two major factors influenced this shift. One is the influx of Catholic immigrants from Europe who challenged the Protestant establishment, particularly in the public school system. According to Philip Hamburger, the pushback against Catholic immigration and the fear of a “papal takeover” of the republic was a rise in anti-Catholic attitudes which saw Protestants clamoring for a stricter separation of church and state to prevent infiltration of Catholic, illiberal ideas. The classic example of this is the attempted yet failed Blaine Amendment which sought to prohibit public funds from being used to fund private (read: parochial) schools.
The other major factor which shifted American culture from a Protestant establishment towards a secular establishment was the rise of Darwinian theory in the academy. Not only did Darwinian theory challenge religious assumptions regarding the origin and nature of mankind (not to mention the trustworthiness of the Bible), it also facilitated the demise of the old Scottish Common Sense realism that had been at the epistemological root of American society and (along with Baconian induction), the basic methodology of American theology since the days of the Founding). Darwinism not only changed science; it altered the philosophy of science, and ushered in an age of specialization which in effect circumscribed everyone to their own sphere of expertise. That meant that the churchman and theologian no longer commanded a place of honor and respect in American intellectual life, but was rather the watchman over a privatized and individualized domain of religion which no longer had much influence on public philosophy. This was both a cause and effect of the fundamentalist pullback from society which began in the late 19th century and continued right on until the late 1970s with the rise of the Religious Right.
The Court and the Establishment Clause
With these factors in mind, we now turn to briefly examine the Supreme Court’s modern disestablishment jurisprudence. Beginning with the Everson case in 1947, the Supreme Court has applied the establishment clause of the FA to the states via the 14th amendment. This is known as the incorporation doctrine (the FEC was “incorporated” seven years early in the Cantwell case). The incorporation doctrine has, for better or worse, had the effect of involving the Supreme Court in every state law or city ordinance or school district policy which touches upon the role of religion in the public life of the state. The essentials of the Everson case revolve around Justice Black’s employment of Thomas Jefferson’s “wall of separation” metaphor, borrowed from a private letter Jefferson wrote to the Danbury Baptists during his tenure as president. The legitimacy of the Court’s use of that private correspondence as a controlling metaphor for first amendment jurisprudence is beyond the scope of this essay.
Regardless, the metaphor of “separation of church and state” has essentially controlled SCOTUS cases since then, with variances and nuances along the way. The Everson case involved a New Jersey statute which allowed for the reimbursement from public funds to parents of private school children for transportation costs. The Court upheld the constitutionality of the reimbursement, reasoning that the funds were paid to private citizens (parents), not to churches. Separationists, such as Joseph Martin Dawson, remarked that “we lost the battle but won the war.” Though the Court allowed this NJ practice to continue, it laid the foundation for a model of FA jurisprudence that continues to this day. The Court followed the Everson case with McCollum (1948) and Zorach (1952), both of which involved religious instruction at school. The McCollum case involved religious instructors coming to the school campus for instruction, which the Zorach case involved release time for the same. Though both cases employed the separationist logic of Everson, different conclusions were reached. In Zorach, the Court recognized that “we are a religious people whose institutions presuppose a Supreme Being” and cautioned that separationism should not be pressed so as to be hostile to religion.
Many religious people, however, felt that hostility was exactly the case when the Court handed down two high profile cases in the early 1960s. Engel v Vitale (1962) and Abington v Schempp (1963) were both cases which involved public grade schools, the former involving prayer and the latter Bible reading. In both cases, the Court saw the practices as impermissible “establishments” of religion. Similar logic was extended to school curriculum in 1968 in the Epperson v Arkansas case which decided that forbidding the teaching of evolution was an impermissible establishment of religion. The Court attempted a more systematic approach to its EC jurisprudence in Lemon v Kurtzman (1971). This was another case involving the use of public money to fund private religious school curriculum. But the more significant and lasting impact of Lemon was the so-called “Lemon test,” which sought to establish a clear and precise jurisprudence for deciding EC cases. The three-pronged test used to determine the presence of an “establishment” was as follows: 1. Was the primary purpose of the law secular or religious in nature? 2. Was the effect either to advance or inhibit religion? 3. Did the law foster an excessive entanglement of church and state? The Court has been quite inconsistent in its employment of the Lemon test, at times seemingly abandoning the test altogether, at other times examining a case on less than all three prongs, and at other times condensing the test into new “establishment” tests, particularly those fashioned by Justice O’Connor (“endorsement”) and Kennedy (“coercion”).
Lemon continued the cause of separationist logic, but the seeds for a new jurisprudence of “accommodationism” were sown in Justice Rehnquist’s dissent in Wallace v Jaffree (1985). Jaffree was another case which involved a moment of silence in which an Alabama school district was allegedly seeking a way to bring prayer back in schools (in response to Engel). Predictably, and following the regime of separationism, the Court struck down the moment of silence. But the more important aspect of this case was the dissent authored by Rehnquist which relied heavily on the scholarship of Robert Cord and argued for an accommodationist or “no preference” interpretation of the EC. In other words, the history of this nation, wrote Rehnquist, was one that did not seek to marginalize the public influence of religion but rather accommodated and encouraged it as a public good.
Since roughly 1985, though separationist logic has still been employed in deciding EC cases, the Court has been more divided and less frequently has the Court been willing to find an impermissible establishment simply because religion has been countenanced or even inadvertently advanced by an action of the state. Though, as can be seen by the Edwards v Aguillard (1987) and Dover (lower court, 2005) cases, the government still finds any attempt to balance the teaching between evolution and creation (or Intelligent Design) as an infringement of the separation of church and state. In cases involving equal access (Good News Club, 2001) or viewpoint discrimination (Rosenberger, 1995), the Court has favored a neutral position in which it was permissible to indirectly advance a religious cause via policies which were neutrally applicable to religious or non-religious groups. In addition, the Court has proven to be more protective of religious encroachments in grade school contexts than in college or other adult settings (for instance, Marsh v Chambers, 1983 and Rosenberger, 1995).
As mentioned earlier, two other “tests” have more recently been attempted as replacements or restatements of the cumbersome Lemon test. Justice O’Connor first formulated her “endorsement” test in the Lynch v Donnelly case of 1984. The endorsement test essentially found an impermissible establishment whenever a government action was seen to send a message to others that they were outsiders and not part of the establishment. Justice Kennedy, on the other hand, has crafted a “coercion” test to discover the same. Employed for the first time in the Lee v Weisman (1992) case, Kennedy would find an impermissible establishment wherever a citizen was coerced, even psychologically, into conformity to a religious exercise with which the person would not voluntarily consent. Scalia dissented in the Lee case, rebutting that the Founders did not view “coercion” in psychological terms but in criminal or financial terms. In other words, under a Kennedy test, there is no real cost to the “outsider” apart from psychological harm. But the Founders understanding of the FA, says Scalia, would not see coercion in such mild terms but when an “outsider” is forced by the law to suffer physically or financially by virtue of state establishment.
The Court’s divisiveness and unpredictability in terms of its EC jurisprudence is typified by the twin Ten Commandments cases of 2005 which the Court struck down the display in Kentucky while at the same time upholding the one in Texas. Presumably, the distinction doing the jurisprudential work was the fact that the purpose (harkening back to Lemon) of the Kentucky display was clearly one which endorsed or advanced religion, whereas the Texas display, being one of 21 monuments on the property, was more diluted in its effect.
The Court and Free Exercise
We now turn to the evolution of the Court’s FE jurisprudence. While not much easier to trace, the Court’s FE doctrine does seem to follow a somewhat discernible pattern: a circle. Beginning with Reynolds (1879), following through to a zenith of free exercise liberality in Sherbert (1963) and Yoder (1972) and returning to a (in some eyes) nadir with Smith in 1990, the Court has seemed to come full circle in its view of the free exercise of religion. This is the important distinction and always has been. The Court has always recognized that “the law knows no heresy” and that religious belief as belief cannot be regulated. However, in terms of conduct or religious exercise, the Court has always seen that the State has a legitimate interest in regulation where the wellbeing of society is at stake. Just as free speech is not completely unregulated (yelling “Fire!” in a crowded theater, for instance), neither is the free exercise of religion.
The Reynolds case of 1879 is a good starting place, being the first major free exercise case heard by the SCOTUS, as well as its employment of Jefferson’s “wall of separation” metaphor, and most importantly, its use of the belief/conduct distinction. The Court ruled against Mormon polygamists, deciding that just because certain behaviors are religiously motivated does not mean the State does not have an interest in regulating the conduct. The question is, to what degree should the State’s action be scrutinized and who receives the benefit of the doubt. Here, the Court offered the benefit of doubt to the state, ruling that religious exercise is not exempt from generally applicable laws with legitimate interest by the state. This “low level scrutiny” was slightly altered in 1940 in the Cantwell case, in which the FEC was first incorporated through the 14th amendment to apply to the states and local governments and not just the U.S. Congress. Cantwell once again recognized the belief/conduct distinction, but this time employed a more “heightened scrutiny” to state action, and in this case ruling for Cantwell. Heightened scrutiny meant that the state shared more of the burden of proof that its restriction of religious free exercise was justifiable.
The zenith, however, of free exercise liberality came in 1963 when the Court, Sherbert v Verner first demanded that the State have a compelling interest in a law that prohibits the free exercise of religion, and that law must be narrowly tailored to meet its justifiable ends (not tailored in such a way as to circumscribe more liberty than necessary to get the job done). The Yoder case of 1973 continued this regime of “compelling state interest” and “strict scrutiny.” In Sherbert, the Court ruled that the State could not withhold unemployment compensation from someone who refused to work on Saturday as a result of religiously informed scruples. In Yoder, the Court ruled that an exemption could and should be legitimately carved out for Amish families who failed to follow state compulsory education laws beyond the eighth grade. In Yoder, the Court was careful to base its exemption on the longstanding history of the Amish as productive citizens . Nevertheless, Yoder extended and seemingly cemented a regime of liberality in terms of religious free exercise: the burden of proof was on the State, not the citizen.
That all changed in 1990 with the much ballyhooed Smith decision. Much like Sherbert, Smith involved unemployment compensation. In Smith, however, the defendants were fired from their jobs as drug counselors because of their own peyote use. The drug usage was part of the Native American religion, and the argument, based upon the Sherbert-Yoder precedents, was that exemptions should be given to religiously motivated exercise and the State must have a compelling interest in restricting free exercise. Justice Scalia, writing for the majority, argued however that generally applicable and neutral laws such as Oregon’s laws against the use of illicit drugs were applicable without the requirement at the state carve out an exemption for religious users of those drugs. Smith, in effect, overturned 27 years of free exercise jurisprudence, though not all see it as the wrong decision. Scalia argued in part on the basis of a slippery slope (if we permit an exemption here for allegedly religiously-motivated conduct, what shall we not be forced to permit?). O’Connor, concurring in the opinion, dismissed Scalia’s “parade of horribles” and argued instead for a return to the old regime. Smith essentially (though not fully) took us back to Reynolds: religious exercise does not require an exemption from generally applicable laws. The Smith standard was employed in the Hialeah case of 1993, but the Court found for the Church of the Lukumi Babali because the city’s ordinances were not generally applicable, but obviously enacted with the express purpose of circumscribing certain religious practices, namely, the ritual slaughter of animals.
The more important reaction to Smith came in the form of the Religious Freedom Restoration Act (RFRA) passed by Congress in 1993, which essentially mandated that the correct interpretation of the FEC be the one defined by the Sherbert-Yoder regime. The Court, in turn, struck down RFRA in 1997 (Boerne) as an overreach of Congressional authority. As it stands, RFRA still applies to federal law, but not to state laws, but many states have enacted their own RFRAs in response to Smith in order to protect religious free exercise with a Sherbert-Yoder type standard.
The Current Interpretive Model
The Locke v Davey case of 2004 provides a good place to examine where the Court is today in terms of its FA jurisprudence. The State of Washington had a Promise Scholarship program which help pay for college for eligible students. The provisions included, however, a prohibition on using the funds to study “devotional theology,” though the student could choose any accredited school, even a private religious one. Joshua Davey was a recipient of the award and chose a private Christian school, but was denied funding for a theology degree. The case went all the way to the Supreme Court, which ruled in favor of the State of Washington and against Mr. Davey. Justice Rehnquist appealed to the “play in the joints” between the two religion clauses for his analysis. Mr. Davey’s free exercise was not restricted in any way just because the state did not pay for him to receive a degree in devotional theology. On the other hand, had the state chosen to fund such a degree, no violation of the EC would have ensued. In other words, the Court has deferred to a more federalist understanding of the religion clauses, opening the door for more leeway for individual states to make their own laws regulating religious conduct, use of public funds for religious purposes, etc. As it stands, perhaps as a way to seek greater predictability and consistency between the sometimes distinct issue raised by the two religion clauses, the Court has essentially truncated both the EC and the FEC to the issue of “neutrality.” Obviously, as the Court’s ideological composition changes over time, so will its approach to FA jurisprudence.