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.
The First Amendment’s Establishment Clause forbids the government from making any law “respecting an establishment of religion.” 1 Perhaps most obviously, this provision prevents the federal government from establishing an official national religion akin to the Church of England.2 But a law may “respect” an establishment even if it does not explicitly establish a religion.3 Thus, relying on the historical background preceding the adoption of the First Amendment, and looking particularly to the colonists’ experiences with religious establishments, the Supreme Court has long understood the Establishment Clause to bar other types of government support that would tend to “establish” religion, as well.4 According to the Court, for the Founders, laws respecting “the ‘establishment’ of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity.” 5
The Supreme Court has often referred to government neutrality towards religion as its guiding principle in applying the Establishment Clause.6 For example, the Court has said the state must “be a neutral in its relations with groups of religious believers and non-believers.” 7 The Court has further recognized that the government may provide some types of support without violating the Establishment Clause.8 While “neutrality” has remained the general touchstone, the Court has adopted a variety of approaches to determine whether any given action is sufficiently neutral.9
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Footnotes
- 1
- U.S. Const. amend. I. The Establishment Clause applies to the states by incorporation through the Fourteenth Amendment. See Everson v. Bd. of Educ., 330 U.S. 1, 8 (1947); see also Amdt14.S1.4.2 Early Doctrine on Incorporation of the Bill of Rights. For more information on how the Supreme Court has defined religious belief and activity, see Amdt1.2.1 Overview of the Religion Clauses (Establishment and Free Exercise Clauses) and Amdt1.4.2 Laws Regulating Religious Belief.
- 2
- See, e.g., Everson, 330 U.S. at 15. See also, e.g., Watson v. Jones, 80 U.S. (13 Wall.) 679, 728 (1871) ( “The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.” ).
- 3
- Lemon v. Kurtzman, 403 U.S. 602, 612 (1971) (emphasis added).
- 4
- Everson, 330 U.S. at 8–15. See also Amdt1.2.2.1 Introduction to the Historical Background on the Religion Clauses.
- 5
- Walz v. Tax Comm’n, 397 U.S. 664, 668 (1970).
- 6
- See, e.g., McCreary Cnty. v. Am. Civil Liberties Union, 545 U.S. 844, 874 (2005); Wallace v. Jaffree, 472 U.S. 38, 60 (1985).
- 7
- Everson, 330 U.S. at 18.
- 8
- Id. at 17.
- 9
- Cf., e.g., Mitchell v. Helms, 530 U.S. 793, 837–38 (2000) (O’Connor, J., concurring in the judgment) (arguing that the plurality opinion’s Establishment Clause analysis treated neutrality as a factor with “close to . . . singular importance” in a way inconsistent with the Supreme Court’s prior jurisprudence).