First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Following 1947’s Everson v. Board of Education,1 the Supreme Court’s early cases considering non-financial support for religion stressed general principles of neutrality towards religion.2 In Illinois ex rel. McCollum v. Board of Education, decided in 1948, the Court held that a program allowing private religious teachers to teach religion in public schools violated the “wall of separation between Church and State” referred to in Everson.3 The Court raised concerns about “the use of tax-supported property for religious instruction and the close cooperation between the school authorities and the religious council in promoting religious education.” 4 The school acted unconstitutionally by using “the State’s compulsory public school machinery” to provide pupils for religious classes.5

Four years later, the Supreme Court concluded in Zorach v. Clauson that a different “released time” program allowing students to leave school grounds to receive religious instruction did not violate the Establishment Clause.6 By contrast to the program invalidated in McCollum, the Zorach program “involve[d] neither religious instruction in public school classrooms nor the expenditure of public funds,” and used no “coercion to get public school students into religious classrooms.” 7 The Court said that while the First Amendment required the “complete and unequivocal” separation of church and state as to matters “within the scope of its coverage,” it did not require separation “in every and all aspects.” 8 Disallowing the public schools’ accommodation of students’ “religious needs,” according to the Court, would have stretched the separation concept to an undesired “extreme[ ].” 9

Also drawing on Everson, the Court’s early cases sometimes reviewed “the background and environment of the period in which [the Establishment Clause] was fashioned and adopted” to analyze whether state laws would be consistent with the Founders’ intent.10 In Torcaso v. Watkins, the Supreme Court looked to colonial history with religious test oaths, and held that the “policy of probing religious beliefs by test oaths or limiting public offices to persons who have . . . a belief in some particular kind of religious concept” was “historically and constitutionally discredited.” 11 The Court held that a state law requiring public officials to declare a “belief in the existence of God” violated the Establishment Clause because its “purpose” and “effect” was to put “the power and authority of the State . . . on the side of one particular sort of believers.” 12 More broadly, the Court declared that the government cannot “pass laws or impose requirements which aid all religions as against non-believers,” nor can it “aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.” 13

In Engel v. Vitale, the Supreme Court looked to history again to hold unconstitutional a state law requiring a specified prayer to be recited at the beginning of a school day.14 As part of its analysis, the Court noted that as “a matter of history[,] . . . this very practice of establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek religious freedom in America.” 15 The Court further reviewed post-Revolution movements to disestablish religion in the former colonies, concluding that when the First Amendment was adopted, “there was a widespread awareness among many Americans . . . . that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government’s placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services.” 16

Footnotes

1

Everson v. Bd. of Educ., 330 U.S. 1, 17 (1947). See Amdt1.3.4.2 Early Cases on Financial Assistance to Religion.

2

One pre-Everson case, Davis v. Beason, upheld a state law barring those who practiced or advocated bigamy and polygamy from voting in the Idaho Territory. 133 U.S. 333, 345 (1890). The Court held that a state could prohibit practices that are “destructive of society,” saying: “Whilst legislation for the establishment of a religion is forbidden, and its free exercise permitted, it does not follow that everything which may be so called can be tolerated.” Id. See also Selective Draft Law Cases, 245 U.S. 366, 389–90 (1918) (summarily rejecting Establishment Clause challenge to draft law containing limited exemptions for ministers and members of certain religious sects); United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904) (summarily rejecting Establishment Clause challenge to immigration law excluding noncitizens found to be anarchists).

3

Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. 203, 210–11 (1948).

4

Id. at 209.

5

Id. at 212.

6

Zorach v. Clauson, 343 U.S. 306, 308, 312 (1952).

7

Id. at 308–09, 311.

8

Id. at 312.

9

Id. at 313, 315.

10

Everson v. Bd. of Educ., 330 U.S. 1, 8 (1947).

11

Torcaso v. Watkins, 367 U.S. 488, 490–92, 494 (1961).

12

Id. at 489, 495.

13

Id. at 495.

14

Engel v. Vitale, 370 U.S. 421, 424 (1962).

15

Id. at 425.

16

Id. at 428–29.