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Establishment Clause

The first clause in the Bill of Rights states that “Congress shall make no law respecting an establishment of religion.”

For approximately the first 150 years of the country’s existence, there was little debate over the meaning of this clause in the Constitution. As the citizenry became more diverse, however, challenges arose to existing laws and practices, and eventually, the Supreme Court was called upon to determine the meaning of the establishment clause.

Though not explicitly stated in the First Amendment, the clause is often interpreted to mean that the Constitution requires the separation of church and state.

Roger Williams, founder of Rhode Island, was the first public official to use this metaphor. He opined that an authentic Christian church would be possible only if there was “a wall or hedge of separation” between the “wilderness of the world” and “the garden of the church.” Williams believed that any government involvement in the church would corrupt the church.

It was not until after World War II that the Supreme Court interpreted the meaning of the establishment clause.

In Everson v. Board of Education (1947), the Supreme Court held that the establishment clause is one of the liberties protected by the due process clause of the Fourteenth Amendment, making it applicable to state laws and local ordinances. Since then the court has ruled in cases that involved required Bible reading in schools, religious displays on government property, display of the Ten Commandments in courtrooms, and the use of government funds to pay for religious schooling.

  • Abington School District v. Schempp (1963)

Abington School District v. Schempp (1963) ended devotional exercises in
public schools because the First Amendment forbade the recognition of one
religion over others.

  • Advocate Health Care Network v. Stapleton (2017)

In Advocate Health Care Network v. Stapleton (2017), church-related
nonprofits argued they were exempt from ERISA pension rules under First
Amendment church-state separation.

  • American Legion v. American Humanist Association (2019)

American Legion v. American Humanist Association (2019) ruled that a
longstanding cross erected to honor slain servicemen does not violate the
First Amendment.

  • Archdiocese of Washington. v. Wash. Metro. Area Transit Authority (2020)

The U.S. Supreme Court refused to hear an appeal of a case in which the
Washington Metro Transit Authority refused to allow an ad from the Catholic
Archdiocese on its bus because it contained religious content. However,
Justice Neil Gorsuch wrote a statement that refusing the religious ad
amounted to viewpoint discrimination.

  • Atwood v. Welton (Conn. Supreme Court) (1828)

Early Americans took oaths quite seriously. Then, as today, individuals who falsely testified under oath at trial were subject to perjury charges. Oaths had a special place because they had a religious connection. It was widely believed that individuals who believed in God and in rewards and punishments in the afterlife were unlikely to risk

  • Barnes v. First Parish in Falmouth (1810)

Barnes v. First Parish in Falmouth (Mass. 1810) found that the state could
establish a religion and that a preacher not of that denomination could not
receive state support.

  • Beatty v. Kurtz (1853)

The Supreme Court ruling in Beatty v. Kurtz (1853) is an example of
favoring church rights despite the First Amendment’s clause against
establishment of religion.

  • Board of Education of Kiryas Joel Village School District v. Grumet (1994)

Board of Education of Kiryas Joel Village School District v. Grumet (1994)
said a school district created for disabled children of a religious sect
violated the First Amendment.

  • Board of Education of the City of Cincinnati v. Minor(1872)

Board of Education v. Minor (1872), a state supreme court decision,
preceded later First Amendment debates in the Supreme Court about religious
instruction in schools.

  • Board of Education of the Westside Community Schools v. Mergens (1990)

In Board of Education of the Westside Community Schools v. Mergens (1990)
the Court upheld the Equal Access Act, which barred religious
discrimination against student clubs.

  • Board of Trustees of Scarsdale v. McCreary (1985)

Board of Trustees of Scarsdale v. McCreary (1985) said that a Christmas
display on public property did not violate the establishment clause of the
First Amendment.

  • Bowen v. Kendrick (1988)

Bowen v. Kendrick (1988) ruled that an act involving religious
organizations and pregnancy services did not violate the establishment
clause of the First Amendment.

  • Capitol Square Review and Advisory Board v. Pinette (1995)

Capitol Square Review and Advisory Board v. Pinette (1995) ruled that a KKK
Christmas display did not violate the establishment clause of the First
Amendment.

  • Carson v. Makin (June 21, 2022)

The Supreme Court in Carson v. Makin ruled in June 2022 that Maine’s
tuition reimbursement program could not exclude parents who sent their
children to religious schools.

  • Church of the Holy Trinity v. United States(1892)

Supreme Court Justice David Brewer called the United States a “Christian
nation” in an 1892 opinion favoring a church who had violated a law on
foreign labor.

  • City of Edmond v. Robinson (1996)

The Court denied certiorari in City of Edmond v. Robinson (1996) upholding
that a city seal violated the establishment clause of the First Amendment
because it contained a cross.

  • Committee for Public Education and Religious Liberty v. Nyquist (1973)

Committee for Public Education and Religious Liberty v. Nyquist (1973)
determined that a tuition and tax break program for parochial school
parents violated the First Amendment.

  • Commonwealth v. Wolf (Penn. Supreme Court) (1817)

In 1817, the Pennsylvania Supreme Court upheld a fine against a Jewish man
who worked on a Sunday in violation of the state’s law prohibiting work on
the Christian Sabbath.

  • County of Allegheny v. American Civil Liberties Union (1989)

A splintered Supreme Court in 1989 held that a nativity creche display
inside a county courthouse in Pittsburgh violated the First Amendment’s
establishment clause.

  • Curtiss v. Strong (Conn. Supreme Court of Errors) (1809)

Curtiss v. Strong, 4 Day 51 (1809), is a case decided by the Supreme Court of Errors of Connecticut that, while affirming the right of individuals of various religious persuasions to testify in court, denied that right to individuals who did not believe in a future state of rewards or punishments. It therefore upheld the

  • Drummond v. Oklahoma Statewide Virtual Charter School Board (Okla. Supreme Court) (2024)

The Oklahoma Supreme Court ruled that the state constitution barring funding of religious entities bars the state from allowing a Catholic school to become a state charter school. The ruling in the case, Drummond v. Oklahoma Virtual Charter School Board, also explored how the action would violate the establishment clause of the First Amendment.

  • Edwards v. Aguillard (1987)

Edwards v. Aguillard (1987) said a state law mandating teaching “creation
science” alongside evolution in public school violated the First
Amendment’s establishment clause.

  • Elk Grove Unified School District v. Newdow (2004)

Elk Grove Unified School District v. Newdow (2004) avoided addressing
whether the words “under God” in the Pledge of Allegiance violated the
First Amendment.

  • Elmbrook School District v. Doe (2014)

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  • Engel v. Vitale (1962)

Engel v. Vitale (1962) ruled that school-sponsored prayer in public schools
violated the First Amendment even though participation in the prayer was
voluntary.

  • Epperson v. Arkansas (1968)

Epperson v. Arkansas (1968) struck down a state law that criminalized the
teaching of evolution in public schools, finding that the law violated the
First Amendment.

  • Espinoza v. Montana Department of Revenue (2020)

The Supreme Court in 2020 ruled that states cannot create programs that
exclude religious schools from programs that subsidize private schools with
public money in Espinoza v. Montana Department of Revenue.

  • Everson v. Board of Education(1947)

Everson v. Board of Education (1947) said spending tax funds to bus
children to religious schools did not breach the First Amendment
establishment clause.

  • Ex Parte Newman (Calif. Supreme Court) (1858)

In Ex Parte Newman, the California Supreme Court in 1858 issued what is
believed to be the only 19th-century case in the U.S. that overturned a law
designed to protect the observance of Sunday, regarded as the Christian
Sabbath.

  • Flast v. Cohen (1968)

Flast v. Cohen (1968) said that taxpayers had standing under the First
Amendment to sue to prevent the use of their taxes to fund religious
instruction.

  • Gillette v. United States (1971)

In Gillette v. United States, the court denied a draft exemption to a man
who refused to participate in the Vietnam War but would have fought in a
war of self defense.

  • Good News Club v. Milford Central School (2001)

Good News Club v. Milford Central School decided that school districts
cannot prohibit First Amendment free speech of groups seeking access to the
district’s limited public forum.

  • Hernandez v. Commissioner of Internal Revenue (1989)

Hernandez v. Commissioner of Internal Revenue (1989) said preventing tax
deductions from monies used for religious “training” sessions did not
violate the First Amendment.

  • Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012)

Hosanna-Tabor v. EEOC (2012) was the first time the Court used a
“ministerial exception” as First Amendment basis for rejecting an
employment discrimination suit.

  • Hunt v. McNair (1973)

In Hunt v. McNair (1973), the Court said allowing religious colleges to use
state bonds to finance non-religious buildings did not violate the First
Amendment.

  • Illinois ex rel. McCollum v. Board of Education (1948 )

Illinois ex rel. McCollum v. Board of Education (1948) overturned an
arrangement whereby public schools provided religious training during
regular school hours.

  • Kennedy v. Bremerton School District (2022)

In Kennedy v. Bremerton School District, the Supreme Court ruled that a
coach-led prayer on the 50-yard line did not violate the establishment
clause of the First Amendment.

  • Kitzmiller v. Dover Area School District (M.D. Pa.) (2005)

In Kitzmiller v. Dover Area School District (M.D. Pa. 2005), a judge ruled
that requiring teachers to teach both Intelligent Design and evolution
violated the First Amendment.

  • Lamb’s Chapel v. Center Moriches Union Free School District (1993)

Lamb’s Chapel v. Center Moriches School District (1993) said that a law
banning a religious group from using a public school to show a religious
film violated the First Amendment.

  • Larkin v. Grendel’s Den, Inc. (1982)

In Larkin v. Grendel’s Den (1982), the Supreme Court said a state law
giving churches the ability to veto liquor license applications violated
the First Amendment.

  • Larson v. Valente(1982)

Larson v. Valente (1982) said a statute requiring churches who received
less than 50 percent of their funds from members to file certain reports
violated the First Amendment.

  • Lee v. Weisman (1992)

Lee v. Weisman (1992) ruled that public schools violate the Establishment
Clause of the First Amendment when they lead students in public prayer at
school events.

  • Lemon v. Kurtzman I (1971)

Lemon v. Kurtzman (1971) said the First Amendment prohibited government
from providing funds to church-run schools. It established the Lemon Test
for establishment clause cases.

  • Lemon v. Kurtzman II (1973)

Lemon v. Kurzman II (1973) said the ruling prohibiting government from
funding religious schools did not mean retroactive payments violated the
First Amendment.

  • Levitt v. Committee for Public Education and Religious Liberty (1973)

Levitt v. Committee for Public Education and Religious Liberty (1973) said
that payments to religious schools for state-mandated testing violated the
First Amendment.

  • Locke v. Davey(2004)

Locke v. Davey (2004) said a scholarship program in Washington state that
did not allow a student to major in theology did not violate his First
Amendment rights.

  • Lynch v. Donnelly (1984)

Lynch v. Donnelly (1984) upheld the inclusion of a manger scene in a
Christmas display on government property against a First Amendment
establishment clause challenge.

  • Marsh v. Chambers(1983)

Marsh v. Chambers (1983) found that the practice of hiring a chaplain to
open the legislative day with prayer did not violate the establishment
clause of the First Amendment.

  • McCreary County v. American Civil Liberties Union (2005)

McCreary County v. American Civil Liberties Union (2005) held 5-4 that Ten
Commandment displays in Kentucky county courthouses violated the First
Amendment’s establishment clause.

  • McGowan v. Maryland (1961)

In McGowan v. Maryland (1961) the Court found that the law limiting
business operations on Sundays did not violate the establishment clause of
the First Amendment.

  • Mueller v. Allen (1983)

Mueller v. Allen (1983) found that a law allowing tax deductions benefiting
parochial schools was not in violation of the establishment clause of the
First Amendment.

  • Nurre v. Whitehead (2010)

Nurre v. Whitehead (2010) involved a student, who alleged her First
Amendment rights were violated when the band could not perform a religious
instrumental at graduation.

  • Pleasant Grove v. Summum (2009)

Pleasant Grove v. Summum (2009) determined a city could refuse to place a
monument in a public park because it was a form of government speech immune
from First Amendment review.

  • Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church (1969)

Presbyterian Church in the United States v. Mary Elizabeth Blue Hull
Memorial Presbyterian Church (1969) denied courts the authority to
interpret doctrine in property disputes.

  • Quick Bear v. Leupp (1908)

Quick Bear v. Leupp (1908) ruled that expenditures from Native American
treaty trust funds for Catholic schools on reservations did not violate the
First Amendment.

  • Roemer v. Board of Public Works of Maryland (1976)

Roemer v. Bd. of Public Works of Maryland (1976) said a program that gave
grants to private colleges, including religious universities, did not
violate the First Amendment.

  • Rosenberger v. Rectors and Visitors of the University of Virginia (1995)

Rosenberger v. Rectors and Visitors of the University of Virginia (1995)
ruled that the denial of student funds to a Christian-based magazine
violated the First Amendment.

  • Runkel v. Winemiller (1799)

Runkel v. Winemiller (1779) gives insight into how early America viewed the
First Amendment. The case involved the Maryland Court of Appeal’s
intervention in a church dispute.

  • Salazar v. Buono (2010)

Salazar v. Buono (2010) said that transferring a cross from public land to
private land was not an endorsement of religion and did not violate the
First Amendment.

  • Santa Fe Independent School District v. Doe (2000)

In Santa Fe Independent School District v. Doe, the Court ruled that a
school policy of beginning football games with student-led prayer violated
the First Amendment.

  • Serbian Eastern Orthodox Diocese v. Milivojevich (1976)

Serbian Eastern Orthodox Diocese v. Milivojevich (1976) ruled that the
First Amendment prevented the state from becoming entangled in hierarchical
church decisions.

  • Shurtleff v. Boston (2022)

The Supreme Court ruled in 2022 in Shurtleff v. Boston determined that, in
this instance, flying a Christian flag on a city flagpole at the request of
a resident was a private expression, not government speech.

  • Sloan v. Lemon (1973)

Sloan v. Lemon (1973) struck down a Pennsylvania law providing tuition
reimbursement for children in private schools, finding it violated the
First Amendment.

  • Smith v. Swormstedt (1853)

Although church and state institutions operate separately under the First
Amendment, government has intervened on internal church matters such as in
Smith v. Swormstedt (1853).

  • Stone v. Graham (1980)

Stone v. Graham (1980) said a law requiring the posting of the Ten
Commandments in every school classroom violated the establishment clause of
the First Amendment.

  • Thornton v. Caldor(1985)

Thornton v. Caldor (1985) found a state law that gave employees an absolute
right not to work on their chosen Sabbath violated the establishment clause
of the First Amendment.

  • Tilton v. Richardson (1971)

Tilton v. Richardson (1971) found an act permitting federal aid for secular
buildings at religious universities did not violate the religious clauses
of the First Amendment.

  • Town of Greece v. Galloway (2014)

Town of Greece v. Galloway (2014) ruled a town’s practice of having prayer
before town meetings did not violate the Establishment Clause of the First
Amendment.

  • Trustees of the New Life in Christ Church v. City of Fredericksburg (2022)

The Supreme Court decided not to hear an appeal in which a Virginia church
argued that the government could not determine who was a minister or not in
denying the church a tax exemption for a minister residence.

  • Tudor v. Board of Education of Borough of Rutherford (N.J.) (1953)

The New Jersey Supreme Court in 1953 ruled that Bible distribution in
public schools by the Gideons violated the First Amendment establishment
clause in Tudor v. Board of Education of Borough of Rutherford.

  • Two Guys from Harrison- Allentown, Inc. v. McGinley (1961)

Two Guys from Harrison-Allentown, Inc. v. McGinley (1960) ruled that Sunday
blue laws did not violate the the establishment clause of the First
Amendment.

  • United States v. Seeger (1965)

In 1965, the Supreme Court expanded the concept of religion that is
protected under the First Amendment in a case involving a conscientious
objector who did not believe in a single Supreme Being. In United States v.
Seeger, the Court moved away from requiring a theistic belief to qualify
for protection of religious freedom.

  • Utah Highway Patrol Association v. American Atheists, Inc. (2011)

The Supreme Court in 2011 declined to hear a case in which a lower court
had ruled Utah Highway Patrol’s roadside crosses violated the establishment
clause of the First Amendment. Justice Clarence Thomas in Utah Highway
Patrol Association v. American Atheists dissented, saying jurisprudence on
the establishment clause needed a cleanup.

  • Van Orden v. Perry (2005)

Van Orden v. Perry (2005) ruled that a monument depicting the Ten
Commandments in public park did not violate the establishment clause of the
First Amendment.

  • Wallace v. Jaffree (1985)

Wallace v. Jaffree (1985) struck down a state law requiring a minute of
silence in public schools. The Court said the law had a religious purpose
and violated the First Amendment.

  • Watson v. Jones (1871)

Watson v. Jones (1871) said the Court would resolve church property
disputes on a basis other than church doctrine, furthering the goals of the
First Amendment.

  • Webster v. Reproductive Health Services (1989)

In his dissent in Webster v. Reproductive Health Services (1989), Justice
Stevens said that a legislative declaration that life begins at conception
violated the First Amendment.

  • Widmar v. Vincent (1981)

Widmar v. Vincent (1981) said that prohibiting religious use of the
University of Missouri’s buildings while allowing secular use violated the
First Amendment.

  • Witters v. Washington Department of Services for the Blind(1986 )

Witters v. Washington Department of Services for the Blind (1986) said a
program that provided funds that a man used for religious education did not
violate the First Amendment.

  • Wolman v. Walter(1977)

Wolman v. Walter (1977) struck down parts of a law that provided funds to
nonpublic schools, including religious schools, as a violation of the First
Amendment.

  • Wyandotte County Commissioners v. First Presbyterian Church (Supreme Court of Kansas, 1883)

Supreme Court Justice David J. Brewer has long been known for his decision in Church of the Holy Trinity v. United States (1892). In that decision, while deciding that a law banning foreign laborers did not apply to a member of the clergy from England, he declared that the United States was a “Christian nation.” 

  • Zelman v. Simmons-Harris(2002)

In Zelman v. Simmons-Harris (2002), the Supreme Court said a state program
allowing taxpayer money to fund school vouchers did not violate the First
Amendment.

  • Zobrest v. Catalina Foothills School District(1993)

Zobrest v. Catalina Foothills School District (1993) said the First
Amendment did not prohibit a school district from providing a sign-language
interpreter to a Catholic school.

  • Zorach v. Clauson (1952)

Zorach v. Clauson (1952) said the released time policy of New York violated
neither the free exercise nor establishment clause of the First Amendment.

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