The Establishment Clause

Note: This is an educational course, not legal advice.

The First Amendment begins: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." These are two clauses, the Establishment Clause and the Free Exercise Clause. You met them in Civics: freedom of religion. This unit teaches the religion clauses as law: what the clauses say, the tests courts use and the holdings. It takes no position on any faith or on religion itself.

At the founding, several states still had established churches supported by taxes; Massachusetts ended its system in 1833. The clause at first limited only Congress (see Barron). It reached the states through incorporation: the Free Exercise Clause in Cantwell v. Connecticut (1940) and the Establishment Clause in Everson.

The source of the famous phrase.

Why it works

How much does Jefferson's letter tell us? The justices have disagreed. Some read the clause broadly, as a principle of strict separation that keeps government out of religion and religion out of government support. Others read it narrowly, as a ban on an official church and on coercion, pointing to practices the First Congress itself adopted, such as paid chaplains and days of thanksgiving. Everson itself shows both: strong separation language, and a result that upheld the program. The next topic traces the tests the Court built from these readings.

Key idea

Everson v. Board of Education (1947) applied the Establishment Clause to the states and quoted Jefferson's "wall of separation," while upholding bus fare payments for students at religious schools as a general public benefit.

Worked example: Where is the phrase?

A student writes: "The Constitution says there must be a separation of church and state." Correct this.

The Constitution's words are "no law respecting an establishment of religion."
"Wall of separation" comes from Jefferson's 1802 letter to the Danbury Baptists, quoted by the Court in Reynolds v. United States (1879) and Everson (1947).

Answer: The phrase is Jefferson's, from an 1802 letter; the Constitution forbids laws "respecting an establishment of religion."

Worked example: A general benefit

A city provides crossing guards outside every school, public and private, including religious schools. Under Everson's reasoning?

Crossing guards protect children's safety, like police and fire protection.
They are a general public service given to all, not aid to religion.

Answer: Permitted, like the bus fares in Everson.

Common mistake

Thinking "separation of church and state" is in the Constitution. It comes from Jefferson's 1802 letter to the Danbury Baptists. The Constitution's words are "no law respecting an establishment of religion." Courts debate how much the letter tells us about the clause's meaning.

From 1791 to Everson.

The Establishment Clause

Practice

Builds on

Leads to

Sources and further reading