Faith and Faithfulness to the Establishment Clause

Many of the first European settlers came to America in search of religious freedom, fleeing state-established religious institutions such as the Church of England. Religious freedom is so central to the vision of American national identity that it was formalized in the Establishment Clause of the First Amendment of the United States Constitution, which provides that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” However, in the centuries since, the judicial interpretation of the Clause – judicial ruling on what constitutes establishing a religion or restricting free exercise thereof – has been fraught with contention. In this article, I will analyze specific interpretations and applications of the Establishment Clause, particularly in Engel v. Vitale, and their constitutional implications for modern governmental religious expressions such as the national motto and the Pledge of Allegiance. Such expressions inappropriately designate the United States as a religious, and principally Christian, nation, thus excluding religious minorities, especially polytheistic and atheist Americans.

There are three main interpretations of the Establishment Clause: strict separation, neutrality, and accommodations [1]. Thomas Jefferson adopted the first view, arguing for a “wall of separation between Church and State,” which the Supreme Court, on occasion, references in rulings [2]. In Reynolds v. United States, for example, the Court characterized Jefferson’s beliefs as “an authoritative declaration of the scope and effect” of the First Amendment, concluding that, while laws “cannot interfere with mere religious belief and opinions, they may with practices,” a logical extension of the strict separation doctrine [3]. It follows that, if the government should legislate without regard to religion, then it may enact laws that conflict with certain religious practices, as long as it has a reasonable social or legal purpose. The First Amendment only limits the government from policing religious beliefs. However, the strict separation interpretation, while faithful to the original intent of the Establishment Clause, paves an easy way to governmental infringement on religious freedom. The government needs only a feasibly legal reason to outlaw practices central to the religious beliefs of minority groups. In Employment Division, Department of Human Resources of Oregon v. Smith, for example, the Court ruled that a state could deny unemployment benefits to a worker fired for illegal drug use as a religious practice. Although the ban on peyote, the substance in question, has a legislative purpose, its application to Native American religious groups prevented them from holding important religious ceremonies.

Accommodationism, at the other end of the spectrum, claims that the First Amendment encourages the government to accommodate religion because of its importance and value to American society. Under this view, the Establishment Clause only prohibits government promotion of religious institutions, such as specific churches, and of showing preference among religions, but not of general religious beliefs and practices [4]. Justice Stewart’s dissent in Engel v. Vitale, which I will discuss, is an example of accommodationism: he believes that the government may actively encourage religious practices, as it does when it holds daily prayers in public schools [5]. While egalitarian accommodationism could be constitutional in theory, it faces practical difficulties. Because protestant Christians and Catholics make up a greater proportion of the American population, have greater historical social acceptance, and are overrepresented among legislators, public accommodation of religion would hypothetically favor these dominant religious affiliations over minority religions. Proportional representation of the American population may be essential to democratic principles in legislation, but rights and liberties established in the Constitution apply to all Americans equally, regardless of the size of their population.

Even as the American population has grown more diverse and less religious, the demographics of politicians have not reflected such changes, partially attributable to the average age of politicians. While only 65% of Americans today identify as Christian, the 117th Congress is 88% Christian. 26% of American adults describe themselves as atheist, agnostic, or “nothing in particular,” yet Senator Kyrsten Sinema is the only religiously unaffiliated member of Congress, representing 0.2% of its members [6]. Government accommodation of religion has historically favored, and will continue to favor, Christianity, as evident in Sunday closing laws – restrictions of commercial activities on Sundays – and the special status of Christmas as one of only 11 American national holidays. 

The final of the three approaches, neutrality, is currently the most widely accepted interpretation of the Establishment Clause and arguably has the most legal basis. The Lemon Test, an outcome of Lemon v. Kurtzman, assesses the constitutionality of legislation according to three criteria of neutrality: that it has a secular purpose, that it neither promotes nor inhibits religion, and that it does not produce an “excessive entanglement” with religion. To be constitutional under the neutrality theory, the government activity must fulfill all three criteria; failure of any single standard renders it unconstitutional. In practice, the Court rarely strikes down a law on the basis of the first two criteria; the most challenging guideline to meet is the “excessive entanglement” criterion, the most ambiguous and subjective [7]. The threshold for “excessive” varies widely depending on the personal philosophies of the justices. As a result, although the Lemon Test attempts to standardize Establishment Clause rulings, its results have been inconsistent. For example, whereas the Court ruled in Lemon v. Kurtzman that states could not provide funding to religious private schools, it ruled in Mueller v. Allen that parents could receive tax deductions for their children’s education at parochial schools [8]. In both cases, it used the Lemon Test but reached different conclusions to largely similar questions. Furthermore, as the Court grows more conservative and consequently more accommodationist, the Lemon Test and the neutrality theory are losing ground [9]. Chief Justice Rehnquist, dissenting in Wallace v. Jaffree, criticizes the Lemon test as being “in no way based on either the language or intent of the drafters” [10]. Justice Scalia, in his concurring opinion, humorously writes, “Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again” [11]. Clearly, he believed the Lemon Test to be outdated and incorrect.

The principle of religious freedom has been tested time and again in cases brought to the Supreme Court, perhaps none more famously than in 1962. The New York Board of Regents authorized a voluntary, nondenominational prayer to be recited in public schools. Five citizens whose children attend public schools in New Hyde Park jointly challenged the prayer, arguing that its facilitation violated the Establishment Clause. The Supreme Court ruled in favor of the petitioners in Engel v. Vitale, reasoning that the government could not compose an official prayer for American citizens to recite in a state-sponsored program [12]. However, while the decision is fully justified, the majority opinion neither sufficiently substantiated its argument nor adequately responded to criticism. On the other hand, Stewart’s dissent demonstrated the biases inherent in accommodationism because the nation has a predominantly Christian past. Neither opinion fully acknowledged the implications of the Court’s ruling for the government’s other official religious expressions and their inconsistencies with the Establishment Clause.

Although the Court’s ruling in Engel is well-founded and ultimately beneficial, the reasoning it invoked in its majority opinion is weak and unfocused. By word count, half of the opinion centers the history of established religion and religious persecution. After a brief introduction, it explains, at length, English and American legal religious history, from the Book of Common Prayer to Fourteenth Amendment, to illustrate the reasoning and importance of the Establishment Clause. While some context may have been helpful, the excessive detail merely detracts from the question at hand and thus dilutes the argument. Neither the petitioners nor the respondents took issue with the Establishment Clause. The central question is whether the Regents’ prayer violated the Clause, and history does not offer strong support for the Court’s position: the Founders would likely not have objected to a nondenominational prayer in public schools. After a brief rebuttal of the counterargument that the prayer is not coercive, the opinion returns to the historical purpose of the Establishment Clause. Some particularly subjective and abstract claims, such as that “religion is personal, too sacred, too holy, to permit its ‘unhallowed perversion’ by a civil magistrate,” stray far from any analysis of the facts of the specific case [13]. This pattern repeats throughout the opinion, which argues almost every relevant point through some lofty description of the Founders’ ideals.

In focusing on vague, tangential points, the Court neglected some important arguments for its case. While the opinion does state that the Establishment Clause “does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion,” it does not elaborate or relate that claim to the case itself; it does not explain how the Regents’ prayer establishes an official religion, a claim for which there are good arguments to be made [14]. As long as an authority figure, such as a teacher, empowered by the state, compels citizens to join a specific religious practice, then the state has effectively endorsed one official religion. The opinion acknowledges the counterargument that the prayer is non-denominational, but it does not respond to it. Regardless of denomination, the prayer is undeniably monotheistic and religious, and to claim that a school-facilitated non-denominational monotheistic prayer does not infringe on students’ religious liberty is an assumption of monotheistic religion as a default. Any acceptance of monotheistic religions as the only American religious affiliations undermines the principle of upholding the diversity of the nation’s religious beliefs. One of the petitioners was atheist. The Court merely touched on its claims and failed to effectively connect them to the larger argument.

Stewart’s dissent, as well as popular criticism, unreasonably characterizes the ruling as an infringement on religious liberty. Stewart wrote, “[W]e deal here… with whether school children who want to begin their day by joining in prayer must be prohibited from doing so” [15]. Mary Davis, a girl from Houston, Texas, similarly questioned in a letter to the Supreme Court, “When children in this country can’t even say the Lord’s Prayer in school... isn’t it true that you are taking the right to worship whenever and wherever they please away from them? [16]” The flaw in their logic reveals the precise injustice of the Regents’ prayer. Without a school-facilitated prayer, Christian students can still pray independently and privately, whether at school or at home, as children of other faiths do. If the absence of a school-facilitated prayer prevents students from exercising their religious liberties, then the school should provide religious services for every religion possible – an unreasonable standard that arises from  a mistaken claim. The Regents’ prayer only offers Christian children additional opportunity to worship beyond their fundamental religious rights and does not constitute that right itself. Removing the prayer, in fact, equalizes the students.

Stewart, criticizing the majority opinion, argues that the relevant consideration “is not the history of an established church in sixteenth century England or in eighteenth century America, but the history of the religious traditions of our people, reflected in countless practices of the institutions and officials of our government” [17]. Despite the validity of his judgment of the majority opinion, his own argument is equally flawed. Contemporary religious practices may provide cultural context and inform the acceptability of the practice at hand, but they cannot independently make a legal case. To make his point, Stewart quotes former presidents who invoke religion in their speech: George Washington made “fervent supplications to that Almighty Being who rules over the universe,” and John F. Kennedy believed that “the rights of man come not from the generosity of the state but from the hand of God” [18]. Yet presidents are only individuals, and their expressions of their personal beliefs, even for a political purpose, do not involve citizens’ participation as the Regents’ prayer does; listening to a president’s beliefs does not require participating in any religious practice, but reciting a prayer certainly does. In addition, other examples of the failure of separation of church and state do not lessen this particular failure. They only demonstrate that the problem is pervasive.

The Regents’ prayer violates the Establishment Clause, as the Court ruled. However, the Court was unwilling to acknowledge that many other government practices do as well. In fact, both the dissent and the majority opinion specifically list such violations but characterize them as acceptable. The majority opinion presents the Declaration of Independence, the national anthem, and the “many manifestations in our public life of belief in God” as “patriotic or ceremonial occasions” that “bear no resemblance to the unquestioned religious exercise that the State of New York has sponsored in this case” but offers no substantiation [19]. Yet these documents and exercises fundamentally represent the nation and its philosophies, and neither national loyalty nor ceremony inherently involves religion. To condone these expressions because of patriotism implicitly ties the nation to Christianity. The Court cannot reasonably argue that the inclusion of such ostentatiously religious statements in the official expressions of the nation’s identity do not violate the Establishment Clause. Stewart, in his dissent, exposes the flaw in the Court’s logic: “I can hardly think that the Court means to say that the First Amendment imposes a lesser restriction upon the Federal Government than does the Fourteenth Amendment upon the States” [20]. Although Stewart meant to make a contrary argument, under the premise that the Regents’ prayer violated the Establishment Clause, he accurately points out that the logic of the majority opinion calls into question many governmental expressions of religion that most people, including the justices in the majority, would find constitutionally acceptable. While Stewart means to rebut the argument that the Regents’ prayer is unconstitutional, the same argument may be used to argue that these other expressions are also unconstitutional. 

Many governmental meetings at federal, state, and local levels open with a recitation of the Pledge of Allegiance, the original version of which did not include any religious reference. Congress added the phrase “under God” in 1954, influenced by the anti-Communist sentiments of the Cold War. Upon signing the bill, President Eisenhower explained its significance, “From this day forward, the millions of our school children will daily proclaim in every city and town, every village and rural school house, the dedication of our nation and our people to the Almighty” [21]. To proclaim the United States a fundamentally religious nation would already violate the principles outlined by the Lemon Test by promoting religion; Eisenhower went a step further to declare all Americans devoted to a single, all-powerful God, specifically in a Christian sense. Eisenhower, self-described as the “most intensely religious man” he knows, believed that the country was “getting too secular” and that the American government “made no sense unless it is founded in a deeply felt religious belief” [22]. While he did not explicitly specify a religion to which the country must subscribe, his personal beliefs, as well as the sociopolitical context, suggest that he meant for the Pledge of Allegiance to promote Christianity specifically. And to this day, the government continues that practice and fulfills its original intention of promoting religion. The phrase “under God” serves no modern purpose beyond that of its original intent.

Just two years after the addition to the Pledge of Allegiance, Congress passed a resolution adopting “In God We Trust” as the official national motto, replacing the traditional motto E pluribus unum, Latin for “Out of many, one.” The change ironically symbolized an ideological shift away from at least theoretically embracing diversity and toward imposing dominant religious beliefs. In 1970, the Court of Appeals for the Ninth Circuit upheld the constitutionality of the usage of “In God We Trust” on American currency and official documents in Aronow v. United States. The decision stated that the motto “is of a patriotic or ceremonial character and bears no true resemblance to a governmental sponsorship of a religious exercise,” borrowing not only the ideas but also the language of Engel, in which the Court wrote that “Such patriotic or ceremonial occasions bear no true resemblance to” the Regents’ Prayer. The Court further cited House Report No. 1959, which claims that the motto has a “spiritual and psychological value” and an “inspirational quality” [23]. These vague descriptions only evade the question of the motto’s purpose and thus further illustrate its religious partiality. A motto that explicitly centers on faith in God can only be meaningfully “inspirational” or have “spiritual and psychological value” to someone if that person has preexisting and corresponding religious beliefs; “In God We Trust” thus primarily has its intended, intangible merit to monotheistic, religious people. In making a blanket statement about the patriotic qualities of a religious national motto, the Court and Congress implicitly acknowledge their view of the United States as a religious and chiefly Christian nation. This portrayal of the nation pushes religious minorities, whose beliefs cannot be represented by the national motto, to the margins of society.

The Court here invokes the principle of ceremonial deism, the idea that governmental religious expressions and practices are permissible because of their historical, ritualistic significance. The underlying logic is that they lose their religious meaning due to repetition. When the government created such expressions and practices, they invariably had long-term religious intent, as demonstrated by Eisenhower’s speech upon approving the addition of “under God” to the Pledge of Allegiance, and the social impact of which endures so long as the practice continues. Congress adopted “In God We Trust” to symbolically reinforce the religiosity of the nation. As long as the motto is in use, it continues to represent official American faith. Unless the national motto is devoid of message, mere analysis of the literal meaning of the phrase refutes ceremonial deism: there can be no secular trust in God. If, under the principle of ceremonial deism, the Court permits such expressly religious expressions, then it can accordingly justify almost any other governmental religious practice so long as it is no more fundamentally religious than phrases like “In God We Trust”–and the bar is high. If the Court employs ceremonial deism, then it undermines the power and enforceability of the Establishment Clause.

While governmental religious expressions, such as those discussed, should not be allowed under the Establishment Clause, it is understandable that the Court avoided making such assertions in Engel. Even half a century after the addition to the Pledge of Allegiance and the adoption of “In God We Trust,” support for both measures remains high. 91% of Americans believe that “under God” should not be removed from the Pledge of Allegiance [24], and 90% approved of the inscription of the national motto on American currency [25]. The Court considers public opinion because its institutional legitimacy depends on the enforceability of its rulings. In 1962, Engel sparked an outrage over the removal of a prayer not relevant to the daily lives of most. Had the Court gone further to challenge the constitutionality of sanctified national symbols during the Cold War, it might very well have provoked an insurgence. The Warren Court, commonly regarded as the most progressive in American history, needed to preserve its potential for future social impact. Reserving purely principled judgments was occasionally a necessary sacrifice.

The Court’s ceremonial deism has gradually eroded the power of the Establishment Clause. The Court today is far more likely to rule in favor of religious organizations than it has been in the past; the Roberts Court makes pro-religion rulings in over 81% of religious cases, whereas its predecessors since 1953 did so about half the time [26]. The governance and self-perception of the United States as a monotheistic, Christian nation not only marginalize minority religious affiliations, but also further enforce the unequal power dynamic among religious affiliations and facilitate unequal representation in positions of power. History is not the sole arbiter of national identity, and the continuation of historical practices, in ignorance of rapid demographic changes, only distances the government from its people. When we characterize ourselves as a nation “under God,” anyone who in God does not trust is made an outsider, an alien, which, surely, had the Founders lived in modern America, would have denounced.

References

[1] “First Amendment: Establishment Clause,” Constitutional Law Reporter, https://constitutionallawreporter.com/amendment-01/establishment-clause/. 

[2] Thomas Jefferson to the Danbury Baptists,” January 1, 1802, Library of Congress, ​​https://www.loc.gov/loc/lcib/9806/danpre.html.

[3] Reynolds v. United States, 98 U.S. 145 (1878).

[4] “First Amendment: Establishment Clause,” Constitutional Law Reporter, https://constitutionallawreporter.com/amendment-01/establishment-clause/. 

[5] Engel v. Vitale, 370 U.S. 421 (1962).

[6] “Faith on the Hill,” Pew Research Center, https://www.pewforum.org/2021/01/04/faith-on-the-hill-2021/.

[7] Richard L. Pacelle Jr., “Lemon Test,” The First Amendment Encyclopedia, https://www.mtsu.edu/first-amendment/article/834/lemon-test.

[8] Mueller v. Allen, 463 US 388 (1983).

[9] Pacelle, Richard L. “Lemon Test.” The First Amendment Encyclopedia. 2009. https://www.mtsu.edu/first-amendment/article/834/lemon-test

[10] Wallace v. Jaffree, 472 U.S. 38 (1985).

[11] Lamb’s Chapel v. Center Moriches Union Free School District, 508 U. S. 384 (1993).

[12] 370 U.S. 421 (1962).

[13] 370 U.S. 421 (1962).

[14] Ibid.

[15] Ibid.

[16] Mary Davis to the Supreme Court, March 1, 1963, Library of Congress.

[17] 370 U.S. 421 (1962).

[18] Ibid.

[19] Ibid.

[20] Ibid.

[21] “God in the White House,” Public Broadcasting Service, https://www.pbs.org/wgbh/americanexperience/features/godinamerica-white-house/.

[22] Public Broadcasting Service, “God in the White House.”

[23] Aronow v. United States, 432 F.2d 242 (9th Cir. 1970).

[24] Linda Lyons, “Americans Indivisible on Pledge of Allegiance,” Gallup, https://news.gallup.com/poll/11551/americans-indivisible-pledge-allegiance.aspx.

[25]”Gallup Poll Results,” USA Today, https://usatoday30.usatoday.com/news/polls/tables/live/2003-09-29-religion-poll.htm

[26] Lee Epstein and Eric Posner, “The Roberts Court and the Transformation of Constitutional Protections for Religion: A Statistical Portrait,” Supreme Court Review, https://ssrn.com/abstract=3825759.